                                                                                FILED
                           NOT FOR PUBLICATION                                  SEP 17 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


YAAKOV J. REVAH,                                 No. 11-70229

              Petitioner - Appellant,            Tax Ct. No. 24076-08L

  v.
                                                 MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,

              Respondent - Appellee.


                           Appeal from a Decision of the
                             United States Tax Court

                             Submitted April 9, 2014**
                               Pasadena, California

Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.

       Yaakov Revah appeals from the decision of the tax court concluding that

equitable recoupment does not apply to offset his income tax liabilities, and

upholding the determination of the Internal Revenue Office of Appeals to proceed


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
with the collection of such liabilities. Because the parties are familiar with the

facts and procedural history of this case, we repeat only those facts necessary to

resolve the issues raised on appeal. We reverse and remand.

      A party seeking equitable recoupment must demonstrate that: (1) the “same

transaction, item, or taxable event” is subject to two taxes; (2) the taxes are

“inconsistent in that the Tax Code authorizes only a single tax”; (3) the tax sought

to be recouped is time barred; (4) there is an “identity of interest between the

parties paying the duplicative tax”; and (5) “the court in which the recoupment

claim is brought must independently have jurisdiction to adjudicate the claim.”

Estate of Branson v. Comm’r, 264 F.3d 904, 909–10 (9th Cir. 2001) (internal

quotations omitted).

      The tax court concluded that Revah could not demonstrate that the Internal

Revenue Service applied two inconsistent taxes. The tax court reasoned that

Revah’s inability to use net operating losses to reduce tax liabilities was the result

of his failure to make his refund claims within the proper time period, rather than

the result of inconsistent theories of taxation.

      The tax court’s conclusion that Revah is not entitled to equitable recoupment

due to his failure to timely file is erroneous. In United States v. Bowcut, we

rejected the government’s argument that recoupment should not be permitted

because the situation from which relief was sought was created by the taxpayer’s
untimely refund claim. 287 F.2d 654, 657 (9th Cir. 1961); see also Branson, 264

F.3d at 918 (citing Bowcut to reject government’s argument that petitioner was not

entitled to equitable recoupment because she did not diligently pursue her refund

claim). Rather, both Bowcut and Branson concluded that equitable recoupment

was available even though the claims at issue were not timely filed. Branson, 264

F.3d at 918; Bowcut, 287 F.2d at 657.

      Therefore, even though Revah failed to timely file his refund claims, his

untimeliness is not a ground upon which the tax court may deny equitable

recoupment. See Branson, 264 F.3d at 918; Bowcut, 287 F.2d at 657. The tax

court thus erroneously concluded that Revah’s failure to timely assert his refund

claims precluded him from satisfying the equitable recoupment requirement that

the taxes be inconsistent. Accordingly, we reverse and remand for further

proceedings consistent with this memorandum disposition.

      REVERSED AND REMANDED.
