Frank R. Sanchez - Page 7

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          provisions do not apply to 1995, we lack jurisdiction to                    
          redetermine petitioner’s income tax liability for 1987.  See sec.           
          6214(b); Farmer v. Commissioner, supra.                                     
               In the alternative, petitioner argues that he is entitled to           
          relief from the error under the theory of equitable recoupment.             
          The Court of Appeals for the Ninth Circuit, the circuit in which            
          an appeal in this case would lie if this case were appealable,              
          has held that the Tax Court has the authority to apply equitable            
          recoupment in cases subject to the Tax Court’s jurisdiction.                
          Estate of Branson v. Commissioner, 264 F.3d 904, 919 (9th Cir.              
          2001), affg. 113 T.C. 6 (1999).                                             
               Equitable recoupment may apply in certain circumstances to             
          overcome the bar of the statute of limitations.  “[A] claim of              
          equitable recoupment will lie only where the Government has taxed           
          a single transaction, item, or taxable event under two                      
          inconsistent theories.”  United States v. Dalm, 494 U.S. 596, 605           
          n.5 (1990).  Here, there are no inconsistent theories of taxation           
          involved.  “If an NOL is claimed in the wrong year, it is not               
          allowable, and that is respondent’s consistent position.”  Farmer           
          v. Commissioner, supra.  Accordingly, there is no basis for                 
          petitioner’s equitable recoupment claim.                                    










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