Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 78

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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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