- 52 - BEGHE, J., concurring: Having joined the majority opinion, I write separately to respond to Judge Chabot's argument that the structure of our deficiency jurisdiction prohibits us from applying equitable recoupment to redetermine petitioner's estate tax deficiency. In Judge Chabot's view, the sole issue for decision in the case at hand, as he argued in Estate of Mueller v. Commissioner, 101 T.C. 551, 565-566 (1993) (Mueller II), is the valuation of the Savings and Willits shares included in decedent's gross estate. Inasmuch as we have performed that task in Branson I, the dissent contends that nothing remains for us to do to redetermine petitioner's estate tax deficiency. I disagree: Our valuations also, as a practical matter, have redetermined a corresponding increase in the section 1014(a) basis of the shares, resulting in the residuary legatee's time-barred overpayment of tax on the sale of the shares. Working with the definition of "deficiency" in section 6211(a), there is a way in which the residuary legatee's overpayment is taken into account in computing petitioner's estate tax deficiency. While the approach I suggest requires an element of fictive or "as if" thinking in applying the statute, I believe the grounds for applying equitable recoupment to the facts of this case support an interpretation of section 6211(a)Page: Previous 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 Next
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