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,
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