Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 46

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          that this Court is authorized to exercise in performing this                
          Court’s judicial functions.  Congress’s elevation of this Court             
          to an “exclusively judicial” court means that this Court’s legal            
          and equitable powers are diametrically different from this                  
          Court’s executive agency predecessors which wielded executive               
          powers only.  Congress’s elevation of this Court to an                      
          “exclusively judicial” court means that this Court possesses all            
          of the inherent powers of a District Court.6                                
               The Court’s Opinion on pages 23-24 quotes Wapnick v.                   
          Commissioner, 365 F.3d 131 (2d Cir. 2004), as to the need for a             
          tax decision to be final.  The Supreme Court opinion discussed in           

               6 I note in particular Contl. Equities, Inc. v.                        
          Commissioner, 551 F.2d 74 (5th Cir. 1977), revg. on grounds not             
          relevant herein T.C. Memo. 1974-189.  There, the Court of Appeals           
          for the Fifth Circuit held that this Court had no authority to              
          apply the doctrine of equitable recoupment.  We recently stated             
          as to that decision:                                                        
               more than 2 decades have passed since the 1977 decision                
               in Continental Equities, Inc. v. Commissioner, 551 F.2d                
               74 (5th Cir. 1977).  In that interval, the concept of                  
               Tax Court jurisdiction has been substantially refined.                 
               Concerning equitable recoupment in particular, the                     
               opinion by the Supreme Court in United States v. Dalm,                 
               494 U.S. 596 (1990), which served as a catalyst for our                
               own reevaluation of our position, was issued only in                   
               1990.  Furthermore, since 1977 the Courts of Appeals                   
               have begun increasingly to acknowledge the difference                  
               between exercising equitable powers to take                            
               jurisdiction and applying equitable principles to                      
               decide matters within the Court’s jurisdiction.  For                   
               instance, a series of recent decisions has consistently                
               affirmed on such basis Tax Court authority to reform                   
               written agreements and to apply equitable                              
               estoppel.  * * *  [Estate of Orenstein v. Commissioner,                
               T.C. Memo. 2000-150.]                                                  





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