7 law, or to mixed matters of law and fact." Brotman v. Commissioner, 105 T.C. 141, 148 (1995). Respondent argues that petitioners improperly raised the collateral estoppel defense for the first time in their brief. In their petition petitioners asserted the following: The facts upon which the Petitioner relies as the basis of this case are as follows: (a) The Petitioner is a Partner in a Partnership that is either involved in or is closely related to, seventeen Partnerships whose business activities for 1977, 1978, and 1979 are now before this court in a consolidated case entitled Bales v. Commissioner, Docket# 12479-82, * * * (b) The stipulation of the parties, trial testimony, and briefs filed by the parties in the Bales case will provide this court with certain background facts about the petitioners' partnership business operations, ownership, cattle management agreements, and legal status that are not stated herein. Petitioners' reference to Bales v. Commissioner, T.C. Memo. 1989-568, is clear, and we are aware that Bales was not yet decided at the time they filed their petition. However, we do not believe that the allegations contained in the petition constituted an affirmative pleading that any factual or legal issues decided in Bales were identical to those involved in this case for purposes of raising a defense of collateral estoppel. Thus, petitioners have not properly pleaded this defense, and therefore it is waived. Gustafson v. Commissioner, 97 T.C. 85, 90 (1991). Assuming petitioners had properly raised the doctrine of collateral estoppel, petitioners bear the burden of proving this affirmative defense. Rules 39, 142(a); Calcutt v. Commissioner,Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
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