- 8 - 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,Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
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