John M. and Rita K. Monahan - Page 18

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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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