Menard, Inc. - Page 23




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          Estate of Mueller v. Commissioner, 101 T.C. at 557.  In Mueller             
          II, and in each of the subsequent cases in which we have applied            
          equitable recoupment, we held that our jurisdiction to                      
          redetermine the disputed deficiency provided the basis for the              
          Court to consider affirmative defenses, including equitable                 
          recoupment.  See Estate of Branson v. Commissioner, supra at 12;            
          Estate of Bartels v. Commissioner, 106 T.C. 430 (1996); Estate of           
          Orenstein v. Commissioner, T.C. Memo. 2000-150.  In this light,             
          our authority to consider a claim of equitable recoupment is                
          merely ancillary to our jurisdiction to redetermine a tax                   
          deficiency and does not unduly expand upon that jurisdiction.               
               In sum, we conclude there is no requirement in section                 
          6214(b) that, in applying the doctrine of equitable recoupment,             
          we have original or subject matter jurisdiction over the tax that           
          the Commissioner or the taxpayer seeks to apply as an offset                
          against a claimed deficiency or refund.  We hold that, if our               
          jurisdiction is properly invoked upon the filing of a petition              
          for redetermination of a deficiency, we may apply the doctrine in           
          respect of any tax imposed under the Internal Revenue Code so               
          long as the elements necessary to support a claim of equitable              
          recoupment are established.                                                 
               B.   Application of the Equitable Recoupment Doctrine to the           
          Facts of This Case                                                          
               Respondent does not dispute that the elements of equitable             
          recoupment are present in these cases.  See supra p. 15.                    






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