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continue this case from the calendar and return it to the general
docket. Respondent seeks additional time to allow petitioner's
former spouse time to file a petition and eventually join these
proceedings. Petitioner has opposed respondent's motion and now
moves for partial summary judgment in his favor.
Petitioner argues that respondent is estopped from
determining a deficiency against him due to her determination of
a deficiency against his former spouse for the same tax
liability. Petitioner contends that respondent, by her action of
determining a deficiency and issuing a notice of same to his
former spouse, has made an admission against interest as to who
is to bear the tax liability for various distributions made to
petitioner from his former spouse's qualified pension and
retirement plans. Petitioner maintains that respondent may not
take inconsistent positions against two taxpayers in separate
notices of deficiency with respect a single tax liability because
to do so necessarily undermines the factual basis upon which her
determinations are premised. Thus, petitioner claims that he is
entitled to summary adjudication in his favor because, as a
matter of law, there exists no issue of material fact with
respect to his tax liability arising from the distributions from
his former spouse's tax qualified plans by reason of respondent's
determination of a deficiency against his former spouse for the
same tax liability. Respondent objects to petitioner's motion,
and asserts that she may take an alternative, though
inconsistent, position against a second taxpayer in a separate
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Last modified: May 25, 2011