Harold Wapnick - Page 8

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          (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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