Estate of Frank A. Branson - Page 58




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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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