- 49 - Parker v. United States, supra at 685. In Parker, the court reasoned that while the Government's failure to determine a deficiency in the mother's estate on the basis of the value of the remainder interest, and the inclusion of the corpus in the stepfather's estate were both wrong, the erroneous tax treatment of the separate estates was not the result of inconsistent theories of taxation as required under the doctrine. See id. The instant case is clearly distinguishable from Parker v. United States, supra. In this case, the same item has been subjected to taxation under inconsistent theories, as corpus under the estate tax and as capital gain under the income tax. We conclude that this requirement is satisfied. See Bull v. United States, supra at 261; see also Boyle v. United States, 355 F.2d at 236 (treatment of the same fund as both corpus and income provided the necessary inconsistency of treatment). 4. Identity of Interest The courts that have found equitable recoupment available in the cases before them have not required absolute identity of interest between the payor of the erroneous overpayment (or underpayment where the Government asserts recoupment) and the recipient of the recoupment. However, if the subject transaction involves two or more taxpayers, equitable recoupment will not bePage: Previous 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 Next
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