- 57 -
States, 250 F. Supp. 875, 877-878 (E.D. Wis. 1966), affd. per
curiam 367 F.2d 822 (7th Cir. 1966).
"[T]he Supreme Court has explicitly and repeatedly stated
that it is sometimes appropriate to interpret statutes in a
manner inconsistent with their literal language." Zelenak,
"Thinking About Nonliteral Interpretations of the Internal
Revenue Code", 64 N.C. L. Rev. 623, 631 (1986). Zelenak notes,
id. at 624, that in the preceding 4 years the Supreme Court had
decided at least four tax cases by adopting on confirming a
nonliteral interpretation of the Code.5
Similarly, the "two wrongs make a right" character of
equitable recoupment, see Willis, "Some Limits of Equitable
Recoupment, Tax Mitigation, and Res Judicata: Reflections
Prompted by Chertkof v. United States," 38 Tax Law. 625 (1985),
emphasizes that "Recoupment, rather than extending the statute of
limitations to correct a perceived injustice, permits a wronged
party to recoup the loss against a sum still open to litigation."
Id. at 633. In so doing, recoupment uses the legal fiction that
the recoupment claim is an element in the computation of the tax
subject to the timely claim, rather than the time-barred tax.
The "two wrongs make a right" notion signifies that where an
5 Citing and discussing Paulsen v. Commissioner, 469 U.S.
131 (1985); Bob Jones Univ. v. United States, 461 U.S. 574
(1983); Commissioner v. Tufts, 461 U.S. 300 (1983); Hillsboro
Natl. Bank v. Commissioner, 460 U.S. 370 (1983).
Page: Previous 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 NextLast modified: May 25, 2011