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res judicata doesn't prevent the Government from litigating the
same tax issue for different years if the law has changed since
the prior lawsuit. Cf. Greene v. United States, 79 F.3d 1348,
1352 (2d Cir. 1996); Kamilche Co. v. United States, 53 F.3d 1059,
1061 n.2 (9th Cir. 1995); ITT Corp. v. United States, 963 F.2d
561, 564 (2d Cir. 1992); Blair v. Taxation Div. Director, 9 N.J.
Tax 345, 352-353 & n.7 (N.J. Tax Ct. 1987), affd. 543 A.2d 99
(N.J. Super. Ct. 1988). Since the Supreme Court spoke its dictum
about the annual nature of the income tax in aid of its
conclusion that res judicata didn't prevent new litigation of the
same issue for later years, query how much of that dictum the
Supreme Court would repeat today, in view of its change of view
on that conclusion (different year no longer implies different
claim or cause of action).
This Court decided, in Hemmings v. Commissioner, 104 T.C.
221 (1995), that a final judgment in District Court in a refund
suit didn't prevent respondent from issuing a statutory notice
for the same year on a different issue and this Court from
32(...continued)
the United States Supreme Court, was prevented by res judicata
from filing a new suit, again at the direction of the United
States and now in United States District Court, against the
constitutionality of the same tax, with respect to different
payments under it. As Commissioner v. Sunnen, supra, had
previously been interpreted, res judicata would not have
prevented suit. However, in Montana v. United States, the United
States Supreme Court emphasized other language in Commissioner v.
Sunnen, supra, about how the law had changed since the previous
decision in deciding that res judicata prevented this new suit.
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