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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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