- 13 -
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
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011