UNITED STATES TAX COURT

106 T.C. No. 24

UNITED STATES TAX COURT

ESTATE OF GORDON H. BARTELS, DECEASED, SALLY A. JOURIS AND THOMAS

G. BARTELS, EXECUTORS, AND ESTATE OF VIOLET J. BARTELS, DECEASED,

SALLY A. JOURIS AND THOMAS G. BARTELS, EXECUTORS, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 13886-90.

Filed June 11, 1996.

Both parties moved for summary judgment based

solely on the issue whether this Court has jurisdiction

to allow, by way of equitable recoupment, an offset of

a barred estate tax overpayment resulting from the

deductibility of the stipulated income tax deficiency

herein as a debt of the decedent, Gordon Bartels.

Held, this Court has such jurisdiction. Estate of

Mueller v. Commissioner, 101 T.C. 551 (1993),

reaffirmed and applied.

John E. Pfau, for petitioners.

John F. Eiman and Thomas L. Fenner, for respondent.

OPINION

TANNENWALD, Judge:

Respondent determined deficiencies in,

and additions to, the decedents' Federal income taxes as follows:

Additions to Tax Under I.R.C. Secs.

6653(a)(1)

6653(a)(2)

6659

Year

Deficiency

1981

$55,681

$2,784

1

$16,704

1982

60,047

3,002

1

18,041

1

Addition to tax is 50 percent of the interest due on the

portion of the underpayment due to negligence.

After concessions by both parties, the issue remaining for

decision is whether, under the doctrine of equitable recoupment,

petitioners may offset against their Federal income tax liability

an overpayment of estate tax, the claim for which is barred by

the statute of limitations.

The case is before us on cross-motions for summary judgment.

All the facts have been stipulated.

The stipulation of

facts and attached exhibits are incorporated herein by this

reference.

There being no dispute as to any material fact, this

case is ripe for disposition in accordance with the cross-motions

of the parties for summary judgment.

Rule 1211; Brotman v.

Commissioner, 105 T.C. 141 (1995).

For the purpose of such

disposition, we set forth the relevant facts.

Petitioners are the estates of Violet J. Bartels (Mrs.

Bartels) and Gordon H. Bartels (Mr. Bartels).

1

At the date of

All statutory references are to the Internal Revenue Code in

effect for the years at issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.

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Mrs. Bartels' death, October 4, 1982, she was a resident of

Rockford, Illinois.

At the date of Mr. Bartels' death, May 16,

1989, he was also a resident of Rockford, Illinois.

Sally A. Jouris and Thomas G. Bartels are the duly appointed

executors of both estates.

They maintained their legal address

in Rockford, Illinois, at the time the petition was filed.

Mr. and Mrs. Bartels timely filed a joint U.S. individual

income tax return for the 1981 tax year.

Following Mrs. Bartels'

death in 1982, Mr. Bartels timely filed a joint U.S. individual

income tax return for the 1982 tax year, pursuant to section

6013(d)(1).2

On March 28, 1990, respondent issued a notice of deficiency

for the 1981 and 1982 tax years.

The petition herein in respect

of such notice was timely filed.

Pursuant to a stipulation of settled issues, petitioners

concede liability for the deficiency for the 1981 and 1982 tax

years as determined by respondent.

2

Sec. 6013(d)(1) allows taxpayers to file a joint return

although one spouse dies before the close of the taxable year of

the other.

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Estate Tax

The estate of Mr. Bartels filed a U.S. Estate and

Generation-Skipping Transfer Tax Return, Form 706, with the

Internal Revenue Service at Kansas City, Missouri, on

February 21, 1990.

It reported a total estate tax liability of

$3,582,245, which was paid as follows:

February 20, 1990

February 20, 1990

February 20, 1990

February 21, 1990

$3,312,643

109,602

80,000

80,000

Total Payments

$3,582,245

Respondent assessed the estate tax liability, in the amount

of $3,582,245, on April 9, 1990.

On November 18, 1991, respondent assessed a deficiency in

estate tax of $94,364, plus statutory interest of $17,094.88.

Both amounts were fully paid on September 18, 1991.

On the original estate tax return, the estate did not claim

any deduction for debts of the decedent, Mr. Bartels, to

respondent for income tax liabilities for the 1981 and 1982 tax

years.

Thus, on September 14, 1993, the estate filed an amended

estate tax return, claiming deductions from the taxable estate

for the following:

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1981 Federal income tax and interest

1982 Federal income tax and interest

1981 State income tax and interest

1982 State income tax and interest

$132,776.23

126,385.98

3,657.86

4,885.50

Total

$267,705.57

As a result of the deductions, the amended return showed an

overpayment of estate tax in the amount of $108,689.

Since the amended return was filed more than 3 years after

the original return, respondent allowed a claim for refund only

to the extent of estate tax paid within 2 years before the

amended estate tax return was filed.

See sec. 6511(a).

Respondent thus refunded $94,364 but not the remaining $14,325 of

the overpayment, which she determined to be barred by the statute

of limitations.

With respect to the overpayment in estate tax that has not

been refunded, $7,086.58 is attributable to the deduction for

1981 Federal income tax liability and $6,781.45 is attributable

to the deduction for 1982 Federal income tax liability.3

Petitioners argue that, under the doctrine of equitable

recoupment, the amount of the Federal income tax deficiencies

should be reduced by the time-barred overpayment of estate tax

resulting from the deductibility of such deficiencies.

3

The

Petitioners concede they may not offset the deficiencies in

this case with overpayments due to deductions for State income

tax liability for 1981 and 1982.

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parties have framed their respective motions solely in terms of

the jurisdiction of this Court, petitioners arguing that we have

such jurisdiction and respondent arguing that we do not.4

The jurisdictional status of equitable recoupment in this

Court has had a long history, which we have recently reviewed

with painstaking care in Estate of Mueller v. Commissioner, 101

T.C. 551 (1993) (Court reviewed).

that history.

We see no need to reiterate

Rather, we turn directly to the statutory

provision upon which respondent relies, section 6214(b), which

provides as follows:

(b) Jurisdiction Over Other Years and Quarters.-The Tax Court in redetermining a deficiency of income

tax for any taxable year or of gift tax for any

calendar year or calendar quarter shall consider such

facts with relation to the taxes for other years or

calendar quarters as may be necessary correctly to

redetermine the amount of such deficiency, but in so

doing shall have no jurisdiction to determine whether

or not the tax for any other year or calendar quarter

has been overpaid or underpaid.

4

Respondent has raised no question in respect of the

requirements of the "same transaction" concept upon which the

doctrine of equitable recoupment rests presumably because, aside

from the question of the jurisdiction of this Court, she has

taken the position that equitable recoupment is available under

the circumstances of this case in a ruling that she does not seek

to disavow herein. Rev. Rul. 71-56, 1971-1 C.B. 404; see O'Brien

v. United States, 766 F.2d 1038, 1047-1051 (7th Cir. 1985);

compare United States v. Bowcut, 287 F.2d 654 (9th Cir. 1961),

and United States v. Herring, 240 F.2d 225 (4th Cir. 1957), with

Wilmington Trust Co. v. United States, 221 Ct. Cl. 686, 610 F.2d

703 (1979); see also Andrews, "Modern-Day Equitable Recoupment

and the 'Two Tax Effect': Avoidance of the Statutes of Limitation

in Federal Tax Controversies," 28 Ariz. L. Rev. 595 (1986).

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In Estate of Mueller v. Commissioner, supra, we concluded

that, because the foundation of our jurisdiction was an estate

tax deficiency, the case did not fall within the scope of section

6214(b), which speaks only in terms of determinations of "a

deficiency of income tax for any taxable year or of gift tax for

any calendar year or calendar quarter".

Under these

circumstances, we held that we had jurisdiction to permit the

petitioner to offset a barred income tax overpayment.

Respondent urges us to overrule Estate of Mueller and return

to the historical picture that evolved from Commissioner v. Gooch

Milling & Elevator Co., 320 U.S. 418 (1943), and reflected a

consistent denial of our jurisdiction to allow equitable

recoupment.

This we will not do.

Alternatively, respondent argues that because income tax

deficiencies are the basis of our jurisdiction herein, Estate of

Mueller is distinguishable and section 6214(b) clearly applies.

We disagree.

In focusing on the opening language of section

6214(b), respondent ignores the concluding language of the

section, which speaks in terms of our not having "jurisdiction to

determine whether or not the tax for any other year or calendar

quarter has been overpaid or underpaid" (emphasis added).

We

think this language means that, at most, section 6214(b) may

operate to preclude us from determining the income tax or gift

tax for any prior period.

In this connection, we note that in

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Estate of Mueller we indicated that equitable recoupment might,

in any event, apply in a "same transaction" situation, see supra

note 4, even where an income tax or gift tax for a prior period

is involved, when we stated:

we interpret Gooch Milling as not preventing the Tax

Court from considering the affirmative defense of

equitable recoupment when it is properly raised in a

timely suit for redetermination of a tax deficiency

over which we have jurisdiction. * * * [Estate of

Mueller v. Commissioner, 101 T.C. at 560; emphasis

added.]

The same reasoning that led to our holding in Estate of

Mueller v. Commissioner, supra, leads us to conclude that

equitable recoupment of the estate tax overpayment against the

income tax deficiencies herein is not precluded by section

6214(b).

Our conclusion finds support in the legislative development

of section 6214(b).

That section originated with the inclusion

of section 274(g) in the income tax provisions of the Revenue Act

of 1926, ch. 27, 44 Stat. 56.

No comparable section was included

in the estate tax provisions of that Act.

No mention was made of

the gift tax because that tax did not come into existence until

the Revenue Act of 1932.

In enacting the gift tax provisions of

the 1932 Act, Congress included section 512(g) of the Revenue Act

of 1932, ch. 209, 47 Stat. 250, which was, except for the

designated tax, a verbatim version of section 274(g) of the

Revenue Act of 1926; no reference to section 512(g) appears in

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the committee reports accompanying the 1932 Act.

No comparable

section was included in the estate tax provisions of the 1932

Act.

Sections 274(g) and 512(g) were incorporated into the

Internal Revenue Code of 1939 by section 272(g) (relating to the

income tax) and section 1012(g) (relating to the gift tax); again

no comparable section was included in the estate tax provisions

of the 1939 Code.

This situation remained until the enactment of

the 1954 Code when sections 272(g) and 1012(g) were combined into

section 6214(b).

The only legislative history in respect of this

action is the identical comment in the committee reports that

"This section represents no change in existing law".

H. Rept.

1337, 83d Cong., 2d Sess. A405 (1954); S. Rept. 1622, 83d Cong.,

2d Sess. 573 (1954).

Of interest is the fact that section

6214(b) speaks only of an income tax or gift tax deficiency

although it is included in subchapter B of chapter 63 entitled

"Deficiency Procedures in the Case of Income, Estate, Gift * * *

Taxes".

Granted that there is no legislative explanation as to why

the limitation of the authority of this Court by section 6214(b)

or its antecedents did not extend to the estate tax, the

foregoing analysis of legislative action reinforces our

interpretation that the words "the tax" in section 6214(b) are

limited to income and gift taxes and therefore do not preclude us

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from allowing equitable recoupment of an estate tax overpayment

against an income tax deficiency.

In this connection, we note

that what is involved herein is a question of our authority and

not a question of our jurisdiction since we already have

jurisdiction by virtue of the income tax deficiency notice and

the timely petition filed in response thereto.

Thus, the cases

articulating a principle that the jurisdiction of this Court is

limited to that conferred upon it by Congress represented by

Commissioner v. Gooch Milling & Elevator Co., supra, and its

progeny, have no application.

See Estate of Mueller v.

Commissioner, 101 T.C. at 553, 560.

In sum, we hold that petitioners are entitled to recoup the

barred estate tax overpayment against the stipulated income tax

deficiencies.

Thus, we shall grant petitioners' motion and deny

respondent's motion for summary judgment.

To take into account our conclusion herein and the

stipulation of settled issues,

An appropriate order will be

issued, and decision will be entered

under Rule 155.