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position, (2) whether the party has succeeded in persuading a
court to accept that party’s earlier position, and (3) whether
the party seeking to assert an inconsistent position would derive
an unfair advantage or impose an unfair detriment on the opposing
party if not estopped. New Hampshire v. Maine, supra at
750-751. A party requesting the application of judicial estoppel
has the burden of proving that the doctrine should be applied.
See Rule 142(a)(1).
Petitioner argues in her brief that respondent has taken a
position that is contrary to a position taken by the United
States in her criminal case. She has not, however, persuaded us
that such is so. In her brief, petitioner does not identify with
any specificity any particular position that she contends is
inconsistent between the criminal case and the proceeding here.
She asserts broadly that the United States argued in the criminal
case that BBL was not formed for a valid business purpose and
that BBL did not engage in any business activity. Contrary to
this assertion, however, the First Superseding Indictment states
specifically as to the 1986 tax evasion charge that the United
States’ position in the criminal case was that: (1) Petitioner
operated the dermatology practice through a three-tier structure,
including BBL, (2) the Bussells effectively managed and
controlled BBL through nominee owners, (3) the Bussells failed to
report the $1,149,048 at issue herein as income on the joint 1996
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