- 16 -
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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