Estate of Frank A. Branson - Page 49




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          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 be            





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