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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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