John F. Daugharty and Sarah R. Daugharty - Page 22

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                  regard to the ultimate matter in dispute, but rather                                   
                  only that a particular position or argument asserted by                                
                  the party in the prior proceeding was accepted by the                                  
                  court.  [Id. at 26; citations omitted.]                                                

            See also Edwards v. Aetna Life Ins. Co., supra at 599.  In                                   
            Huddleston v. Commissioner, supra at 29, we applied judicial                                 
            estoppel to prevent the taxpayer from denying that he had                                    
            fiduciary authority to act on behalf of a decedent's estate.                                 
            This position was completely contradictory to the position that                              
            the taxpayer had taken, and this Court had accepted, in a prior                              
            case.                                                                                        
                  Judicial estoppel must be applied with caution in order "to                            
            avoid impinging on the truth-seeking function of the court                                   
            because the doctrine precludes a contradictory position without                              
            examining the truth of either statement."  Teledyne Indus., Inc.                             
            v. NLRB, supra at 1218; see also Allen v. Zurich Ins. Co., supra                             
            at 1166; Fazi v. Commissioner, 105 T.C. 436, 445-446 (1995).  As                             
            a result, before applying judicial estoppel, courts not only                                 
            require that a party have asserted an inconsistent position in an                            
            earlier proceeding, but also that the court in the earlier                                   
            proceeding accepted that position.  United States v. C.I.T.                                  
            Constr., Inc., 944 F.2d 253, 258-259 (5th Cir. 1991); Edwards v.                             
            Aetna Life Ins. Co., supra at 599; Huddleston v. Commissioner,                               








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