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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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