- 18 - 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. * * *Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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