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earlier matter has received erroneous tax treatment,
"[recoupment] does not correct the wrong, as does the mitigation
statute, but instead causes a later matter to be equally wrong in
the opposite direction." Id.
As Justice Stevens observed in his dissent in United States
v. Dalm, 494 U.S. 596, 612-623 (1990), the Supreme Court in Bull
v. United States, 295 U.S. 247 (1935), could have taken the
strict view that the statute of limitations barred the taxpayer's
claim, but instead "avoided that unjust result" by construing the
plaintiff's rights in a Federal tax refund suit by reference to
those of a defendant, thereby proceeding "under * * * the
presumption that for every right there should be a remedy."
United States v. Dalm, supra at 616-617. Acknowledging that
treating a plaintiff like a defendant "so as to permit, in
effect, the equitable tolling of the limitations period" was
perhaps "an unusually flexible treatment of legal categories,"
Justice Stevens observed that such treatment was "nothing more
than the necessary expression of an exception to a generally
appropriate definition", an exception that had received the
status of a legal rule under Bull. Id. at 618. See Tierney,
"Equitable Recoupment Revisited: The Scope of the Doctrine
Revisited in Federal Tax Cases after United States v. Dalm," 80
Ky. L.J. 95, 131-165 (1992).
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