Estate of Frank A. Branson - Page 52




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               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)             







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