- 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 be
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