Estate of Harry Orenstein - Page 5




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          offset against the stipulated 1981 and 1982 income tax debts an             
          $84,590 overpayment of estate tax.  This claim for equitable                
          recoupment is the subject of the instant litigation.                        
                                     Discussion                                       
          I.  Contentions of the Parties                                              
               Petitioners contend both that their situation satisfies the            
          factual prerequisites for equitable recoupment relief and that              
          this Court has the legal authority to afford such relief.  They             
          base their averments primarily on our recent decisions in Estate            
          of Branson v. Commissioner, 113 T.C. 6 (1999), Estate of Bartels            
          v. Commissioner, 106 T.C. 430 (1996), and Estate of Mueller v.              
          Commissioner, 101 T.C. 551 (1993).                                          
               Conversely, respondent asserts that this Court lacks                   
          authority to recognize an equitable recoupment defense.                     
          Respondent argues that cases such as Estate of Branson v.                   
          Commissioner, supra, and Estate of Bartels v. Commissioner,                 
          supra, were incorrectly decided and ignore a plain reading of               
          statutory and case law.  In the alternative, respondent maintains           
          that Continental Equities, Inc. v. Commissioner, 551 F.2d 74 (5th           
          Cir. 1977), affg. in part and revg. in part T.C. Memo. 1974-189,            
          is controlling law in the Eleventh Circuit and thereby settles              
          the issues in this case, in a manner consistent with respondent’s           
          position, pursuant to the rule established in Golsen v.                     








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