John U. Fazi and Sylvia Fazi - Page 13

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                  It is within this Court's discretion to accept or reject a                               
            concession.  However, acceptance of a concession does not mean                                 
            that the Court has evaluated and accepted the underlying                                       
            substantive issues or legal principles supporting the concession.                              
            We may accept a concession or choose to decide the underlying                                  
            substantive issues as justice requires.  Jones v. Commissioner,                                
            79 T.C. 668, 673 (1982); McGowan v. Commissioner, 67 T.C. 599,                                 
            601, 605 (1976).  As a practical matter, the Court may accept                                  
            concessions of law in the interests of judicial economy.  The                                  
            parties, in Fazi I, chose to focus their time and energy on                                    
            arguing whether we should overrule Baetens v. Commissioner, 82                                 
            T.C. 152 (1984), revd. 777 F.2d 1160 (6th Cir. 1985).  The issue                               
            of taxability of the merged amount in 1987 was conceded by                                     
            respondent on brief; it was not a contested issue.  The Court, in                              
            Fazi I, did not purport to rule as to the merits of this issue.                                
                  To the extent, if any, that Fazi I states that a merger of a                             
            frozen pension plan into an unqualified plan is taxable to the                                 
            beneficiaries in the year of merger, it is dicta.  However, the                                
            issue of whether the merged amount is taxable to petitioners in                                
            1986 does not end here.                                                                        
            Are Petitioners Judicially Estopped from Asserting that the                                    
            Merged Amount is not Taxable in 1986                                                           
                  Respondent, on brief, attempts to raise the doctrine of                                  
            judicial estoppel against petitioners.  Petitioners correctly                                  
            point out that Rule 39 requires avoidance or affirmative                                       




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