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Fourthly, nothing in the concepts of a "court", or a "court
of law", makes equitable recoupment an essential characteristic
of a court, or of a court of law.
My position remains that we are to resolve those matters
which affect the amount of the estate tax deficiency to be set
forth on the decision document we enter in the instant case.
Equitable recoupment does not affect any of the elements of the
deficiency, as statutorily defined, and so does not affect the
decision we enter. Judge Beghe's concurring opinion does deal
with this Court's deficiency jurisdiction, which is the only
jurisdiction that brings the instant case before us. Judge
Beghe’s concurring opinion suggests a route by which the square
peg of recoupment could be squeezed into the round hole of the
statutory definition of deficiency.1
However, several aspects of this suggested route remain to
be paved. Firstly, "deficiency" and "underpayment" are defined
terms. Secs. 6211, 6664(a). They are not legal fictions. The
amount, if any, that a taxpayer may have to pay to the Government
may well be different from the amount of the deficiency or any
underpayment.
Secondly, the Supreme Court has recently indicated that, as
to the Tax Court, the statute of limitations (the major
1 This imagery is generally thought to have originated in
Sidney Smith's reference to “a square person has squeezed himself
into the round hole.” Sketches of Moral Philosophy (1850).
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