Offensive Versus Defensive Equitable Recoupment

Abstract

The Doctrine of Equitable Recoupment applies defensively, but not offensively - or so most authorities claim. This common statement is not quite accurate. Certainly, the Doctrine is defensive in that it does not open a closed year or matter; instead, it serves to recoup barred matters against open ones involving the same item and person.

But, some "Offensive Use" is permissible in that a Taxpayer may use the Doctrine to seek a refund in District Court. In such a case, the Doctrine of Equitable Recoupment becomes the basis for the suit. While that is not "offensive" in the sense of opening a closed matter, it is offensive in that it underpins jurisdiction.

The government, however, may not use the Doctrine offensively, even to this limited extent. Hence, use by the taxpayer does not mirror use by the government.