Bernhard F. and Cynthia G. Manko - Page 30

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          their privies, in a later suit on a different cause of action, of           
          issues of fact and law actually litigated and necessarily decided           
          by a court in reaching a prior judgment.  United States v. Mendoza,         
          464 U.S. 154, 158 (1984).  As we stated in Hudson v. Commissioner,          
          100 T.C. 590, 593-594 (1993):                                               
                         For obvious reasons, where  a  trial                         
                    court's judgment is vacated, reversed, or set                     
                    aside by an appellate court, collateral                           
                    estoppel will not apply to the trial court's                      
                    conclusions of law or findings of fact. * * *                     
                    where a trial court's conclusions of law or                       
                    its findings of fact are challenged on appeal                     
                    and where the appellate court affirms the                         
                    trial court's judgment on grounds different                       
                    from those relied upon by the trial court and                     
                    does not pass on the trial court's conclusions                    
                    of law or findings  of  fact,  collateral                         
                    estoppel will not apply to the trial court's                      
                    conclusions of law or findings of fact. * * *                     
                         The  underlying  rationale  for  this                        
                    limitation on collateral estoppel is that,                        
                    where an appellate court does not pass on a                       
                    trial court's conclusions of law or findings                      
                    of fact with regard to a particular issue that                    
                    is appealed, the party who lost before the                        
                    trial court has not had a full and fair                           
                    opportunity to litigate, at the appellate                         
                    level, the trial court's conclusions of law or                    
                    findings of fact. * * * Under this limitation,                    
                    where a trial court's conclusions of law or                       
                    findings of fact are not passed on by the                         
                    appellate court, the trial court's conclusions                    
                    of law or findings of fact are effectively set                    
                    aside, and the trial court's conclusions of                       
                    law or findings of fact cannot be used as the                     
                    basis for collateral estoppel in a subsequent                     
                    proceeding between the same parties. * * *                        








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