Estate of Harry Orenstein - Page 8




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          proper basis for recoupment.  See Estate of Bartels v.                      
          Commissioner, supra.  Hence, we need address only the parties’              
          contentions regarding our authority to grant such relief.                   
               B.  The Tax Court Position                                             
               The issue of whether this Court possesses authority to                 
          recognize an equitable recoupment defense has a long history.               
          Prior to our decision in Estate of Mueller v. Commissioner,                 
          supra, we adhered to the view that we lack jurisdiction to apply            
          equitable recoupment.  See Estate of Schneider v. Commissioner,             
          93 T.C. 568, 570 (1989); Phillips Petroleum Co. v. Commissioner,            
          92 T.C. 885, 889-890 (1989); Estate of Van Winkle v.                        
          Commissioner, 51 T.C. 994, 999-1000 (1969).  This position was              
          based in large part on Commissioner v. Gooch Milling & Elevator             
          Co., 320 U.S. 418, 420-422 (1943), in which the U.S. Supreme                
          Court held that the limited jurisdiction of the Board of Tax                
          Appeals, an administrative agency and the predecessor of the Tax            
          Court, did not extend to claims of equitable recoupment.                    
               In 1990, however, the Supreme Court noted in United States             
          v. Dalm, 494 U.S. 596, 611 n.8 (1990):  “We have no occasion to             
          pass upon the question whether Dalm could have raised a                     
          recoupment claim in the Tax Court.”  We concluded from this                 
          statement that the Supreme Court left open whether the Tax Court,           
          as presently constituted in the form of a court of law under                
          Article I of the Constitution, see Freytag v. Commissioner, 501             






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