USA v. Hulick et al

Filing 65

ORDER granting 46 motion to reconsider 42 order. So Ordered by Chief Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America,
Plaintiff
v.

Case No. 08-cv-499-SM
Opinion No. 2011 DNH 152

David M. Hulick and
Caroline P. Hulick,
Defendants/
Counterclaim Plaintiffs
and
State of New Hampshire
Department of Employment Security,
Defendant
O R D E R
Defendants/Counterclaim Plaintiffs, David and Caroline
Hulick, move the court to reconsider its recent order (document
no. 42), by which it granted in part, and denied in part, the
government’s motion to dismiss the Hulicks’ counterclaims.
Specifically, the Hulicks assert that, despite their lack of
administrative exhaustion, the equitable doctrine of “recoupment”
permits them to maintain their counterclaims under 26 U.S.C.
§ 7433.

The court disagrees.

The doctrine of equitable recoupment has extremely limited
application and the Supreme Court has “emphasized that a claim of
equitable recoupment will lie only where the Government has taxed

a single transaction, item, or taxable event under two
inconsistent theories.”
n.5 (1990).

United States v. Dalm, 494 U.S. 596, 605

See also Id. at 608 (“In sum, our decisions in Bull

and Stone stand only for the proposition that a party litigating
a tax claim in a timely proceeding may, in that proceeding, seek
recoupment of a related, and inconsistent, but now time-barred
tax claim relating to the same transaction.”); IES Indus. v.
United States, 349 F.3d 574, 581 (8th Cir. 2003) (“[T]he doctrine
of equitable recoupment in federal tax jurisprudence allows a
court in limited situations to disregard a statute of limitations
in order to further the public interest that no one should be
permitted to avoid his just share of the tax burden except by
positive command of law. . . . As distinguished from offset,
equitable recoupment allows the IRS to set off a refund due a
taxpayer for one tax year by an underpayment from a different
year, but only in the circumstances described by the Court.”)
(citations and internal punctuation omitted); Rogers v. United
States, 281 F.3d 1108, 1128 (10th Cir. 2002) (“It is evident from
Supreme Court precedent, however, that recovery using the
doctrine of equitable recoupment is restricted to situations
where a single transaction or taxable event has been subjected to
two taxes on inconsistent legal theories.”) (citation and
internal punctuation omitted).

2

The Hulicks have not pointed to any authority - whether
binding or merely persuasive - that suggests they might properly
invoke the equitable doctrine of recoupment under the
circumstances presented in this case.

Consequently, in light of

the precedent cited above, the court concludes that such an
equitable remedy is unavailable to them in this proceeding.

Defendants’ motion to reconsider (document no. 46) is
granted.

But, having reconsidered its order of June 30, 2011

(document no. 42), as well as the principles governing
application of equitable recoupment, the court is constrained to
deny defendants the relief they seek.
SO ORDERED.
____________________________
Steven J. McAuliffe
Chief Judge
September 28, 2011
cc:

Andrea A. Kafka, Esq.
David E. Will, Esq.
Joshua M. Wyatt, Esq.
Charles H. Bradley, III, Esq.
Richard J. Lavers, Jr., Esq.

3