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refusing to grant partial summary judgment to the taxpayers on
the basis of res judicata. Although it's settled law that the
requirements for claim preclusion are: (1) identical parties
(met); (2) court of competent jurisdiction (presumably met); (3)
final judgment on merits (met); and (4) identical cause of
action, United States v. Shanbaum, 10 F.3d 305 (5th Cir. 1994),
we decided in Hemmings that the Government was only prevented
from litigating in a new suit after a concluded refund suit all
its compulsory counterclaims and such permissive counterclaims as
are actually litigated. Hemmings v. Commissioner, 104 T.C. at
234. What this means is that this Court has held that it's not
always and for all purposes that all tax issues having to do with
the same taxpayer and the same tax year are parts of one
indivisible claim or cause of action.
In Hemmings v. Commissioner, 104 T.C. at 234-235, we cited a
number of cases holding or stating that unrelated tax claims by
the Government having to do with the same tax year or same estate
are not compulsory counterclaims in a refund suit by the taxpayer
in District Court. See, e.g., Gustin v. IRS, 876 F.2d 485, 490
n.1 (5th Cir. 1989) (wrong to dismiss for lack of jurisdiction
Government's counterclaim in refund suit, because that
counterclaim is not compulsory); Caleshu v. United States, 570
F.2d 711, 713-714 (8th Cir. 1978) (pending refund suit in
District Court does not prevent collection action to reduce
unpaid assessments to judgment in different District Court);
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