- 15 -
an exigency of the moment", Teledyne Indus., Inc. v. NLRB, 911 F.2d
1214, 1218 (6th Cir. 1990); "blowing hot and cold", Allen v. Zurich
Ins. Co., 667 F.2d 1162, 1167 n.3 (4th Cir. 1982); and "playing
fast and loose with the courts", Scarano v. Central R.R., 203 F.2d
510, 513 (3d Cir. 1953).
In order to invoke judicial estoppel against a party, that
party's contrary position must have previously been accepted by the
court, which means only that the court must have adopted a position
urged by the party, either as a preliminary matter or as a part of
a final disposition.8 In the Tax Court, a stipulation is treated
as a conclusive admission by the parties, and the Court will not
permit a party to change or contradict a stipulation, except in
extraordinary circumstances. Rule 91(e). Thus, while this Court
has not yet decided the ultimate matter in Mr. Maynard's case, the
Court will certainly find that Mr. Maynard received $52,999.50 from
petitioner in 1989 "for consulting services" and that this amount
is includable in Mr. Maynard's taxable income for 1989.9 Such a
finding supports the Commissioner's position in Mr. Maynard's case.
Under these circumstances, the fact that the Court has yet to issue
an opinion or render a decision in Mr. Maynard's case, should not
8"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." Huddleston v.
Commissioner, 100 T.C. 17, 26 (1993).
9Both the Commissioner and Mr. Maynard agree to this finding
in their respective briefs.
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