John U. Fazi and Sylvia Fazi - Page 16

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            without examining the truth of either statement."  Teledyne                                    
            Indus., Inc. v. NLRB, 911 F.2d 1214, 1218 (6th Cir. 1990); see                                 
            Allen v. Zurich Ins. Co., supra at 1166.                                                       
                  Petitioners cite Huddleston for the proposition that                                     
            judicial estoppel requires a party to have "affirmatively                                      
            persuaded a court" to accept their "particular position".                                      
            Huddleston v. Commissioner, supra at 26.  "Judicial estoppel                                   
            generally requires acceptance by a court of the prior position".                               
            Id.  The Court later defined what it meant by "acceptance":                                    
                  Acceptance by a court does not mean that the party                                       
                  being estopped prevailed in the prior proceeding with                                    
                  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.; citation omitted.]                                                         
            The Court in Fazi I did not accept an argument or position of                                  
            petitioners; it accepted respondent's concession.                                              
                  Judicial estoppel is a doctrine adopted to protect the                                   
            Court; the Court has discretion as to when it should be used:                                  
            "Estoppel is an equitable concept, and its application is                                      
            therefore within the court's sound discretion."  In re Cassidy,                                
            892 F.2d at 642.  Petitioners' actions are not causing any                                     
            "inappropriate and prejudicial consequences" to the Court.  We                                 
            have not been misled or whipsawed by petitioners; any loss to the                              
            revenue has been the direct result of respondent's erroneous                                   
            concession in Fazi I.  The elements required for judicial                                      






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