- 56 -
often has spurious self-evidence about it." L. Fuller, Legal
Fictions 71 (1967).4
The concepts of tax "deficiency" and "underpayment" are
themselves legal constructs that amount to fictions, inasmuch as
neither of them purports to be the amount of a petitioner's
remaining obligation to pay tax; they stand in somewhat the same
relationship to such obligation as shadows do to the three-
dimensional object. However, once a deficiency determined by the
Commissioner (or redetermined by the Tax Court) is assessed, the
deficiency becomes a legal obligation that the Commissioner can
collect, and reality painfully intrudes.
By allowing the residuary legatee's overpayment to be taken
into account in determining petitioner's estate tax deficiency,
we do no more than give effect to the accepted notions that "the
rule of equitable recoupment permits recovery of an otherwise
barred claim by resort to the fiction that the overpayment is a
credit or defense against a later asserted tax liability for a
year open to suit" and that "The doctrine of equitable recoupment
utilizes the fiction of a tax credit or defense to liability for
a year open to suit to avoid violation of the statutory scheme
providing for finality of tax determinations." Holzer v. United
4 Originally published in slightly different form in three
parts in 25 Ill. L. Rev. 363, 513, 865 (1930-31).
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