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controlling facts have changed. In particular, petitioners
assert that petitioner and Mr. Bell were no longer on friendly
terms in 1991 because Mr. Bell was being audited by the same
revenue agent who audited petitioners for the taxable years in
issue in Monahan I. As a result, petitioners claim that Geoffrey
Briant, a Canadian citizen, became involved as a mediator with
control over distributions from the Aldergrove account in 1991.
That purported change in the controlling facts, however, would
have been relevant to this Court in deciding Monahan I because
the Aldergrove issue was critical to the Court's conclusion that
petitioner's purported repayment of his negative capital account
in Span Services lacked economic substance, but petitioners
failed to raise Mr. Briant's alleged involvement in Aldergrove
despite the opportunity to present evidence on that issue in
Monahan I. The observation of the Court of Appeals for the Tenth
Circuit in Jones v. United States, 466 F.2d 131, 136 (10th Cir.
1972), is apt:
Evidence of this type is not the result of a
different factual situation or changed circumstances.
It is, instead, historical in nature and could have
been admitted at the first trial if properly submitted.
If the taxpayers' case was not effectively presented at
the first trial it was their fault; affording them a
second opportunity in which to litigate the matter,
with the benefit of hindsight, would contravene the
very principles upon which collateral estoppel is based
and should not be allowed. * * *
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