Charles McHan and Martha McHan - Page 8

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          deficiency have not been assessed, and may not be assessed until            
          the decision in this case is final.  Sec. 6213(a).  Because the             
          amendment to section 6661 set forth in OBRA is effective with               
          respect to assessments made after October 21, 1986, it follows              
          that the additions to tax at issue in this case will be computed            
          based upon 25 percent of the underpayment, if any.  See DiLeo v.            
          Commissioner, 96 T.C. 858, 878 (1991), affd. 959 F.2d 16 (2d Cir.           
          1992) (rejecting the taxpayers' contention that the OBRA                    
          amendment to section 6661 violates the ex post facto clause of              
          the U.S. Constitution).  The question of petitioner's liability             
          for the additions to tax under section 6661 is a factual matter             
          that will be decided at trial.                                              
               2.  Collateral Estoppel                                                
               Under the doctrine of collateral estoppel, or issue                    
          preclusion, a final judgment on the merits in a prior lawsuit               
          precludes, in a later lawsuit involving a separate cause of                 
          action, litigation of issues actually litigated and necessary to            
          the outcome of the first action.  See United States v. Mendoza,             
          464 U.S. 154, 158 (1984); Parklane Hosiery Co. v. Shore, 439 U.S.           
          322, 326 (1979); Meier v. Commissioner, 91 T.C. 273, 283 (1988);            
          Amos v. Commissioner, 43 T.C. 50 (1964), affd. 360 F.2d 358 (4th            
          Cir. 1965).  In Meier v. Commissioner, supra at 283-286, we held            
          that collateral estoppel may be utilized in connection with                 
          matters of law, matters of fact (whether ultimate facts or                  
          evidentiary facts), and mixed matters of law and fact.  However,            




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