Some Limits of Tax Mitigation, Equitable Recoupment, and Res Judicata: Reflections Prompted by Chertkof v. United States

Abstract

Contrary to a decision of the Fourth Circuit, the mitigation provisions of the Internal Revenue Code do not apply to Income Tax/Estate Tax inconsistencies. As a result, the Equitable Doctrine of Equitable Recoupment provides a potential remedy for such matters.

Unfortunately, the Fourth Circuit reached an incorrect decision and improperly expanded the mitigation provisions. By the time of the litigation, the applicability of Recoupment was also unavailable because of actions - or failures to act - by some of the parties.

Keywords: Tax Mitigation, Equitable Recoupment, Res Judicata, Tax