- 8 -
(10th Cir. 1989), affg. T.C. Memo. 1984-392; Calcutt v.
Commissioner, 91 T.C. 14, 25 (1988) (evidence which, by due
diligence, could have been produced in the prior proceeding is
considered to have been available at the prior proceeding and
therefore will not preclude the application of collateral
estoppel); see also Schachenmayr v. Commissioner, T.C. Memo.
1991-281, affd. without published opinion sub nom. H & W Motel
Corp. v. Commissioner, 979 F.2d 846 (2d Cir. 1992). Furthermore,
such alleged defects in the prior proceeding are appropriately
raised on the appeal of that decision. Lilley v. Commissioner,
T.C. Memo. 1989-602, affd. without published opinion 925 F.2d 417
(3d Cir. 1991).
Finally, petitioner claims that respondent's determinations
are precluded because the 6-year period of limitations has run.
Because there is fraud as to the years 1985, 1986, and 1987
resulting from the application of the doctrine of collateral
estoppel, the period of assessment remains open for such years.
Aslam v. Commissioner, T.C. Memo. 1981-159.
Accordingly, based upon the foregoing,
An appropriate order
will be issued.
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