Bruce L. Carpenter and Carolyn L. Carpenter - Page 7

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          precluded from asserting that "EOCC had title to the Modoc                  
          property as the nominee of * * * [petitioners] between 1989 and             
          1990" since petitioners conceded as part of their agreement with            
          respondent resolving the case that petitioners brought before               
          this Court that they had a constructive dividend which was                  
          subject to tax because EOCC, and not petitioners, owned the Modoc           
          property, and petitioners lived on that property rent free.  The            
          United States contended (1) that its position was not inconsis-             
          tent with any prior positions taken by respondent in petitioners'           
          case before this Court and (2) that the issues in the District              
          Court case were being presented for the first time and had not              
          been litigated in petitioners' case before this Court.  The                 
          District Court agreed with the United States and held:                      
               'Judicial estoppel, an equitable doctrine invoked in                   
               the discretion of a court, is intended to protect                      
               against a litigant playing fast and loose with the                     
               courts.'  In this case, the court finds that the * * *                 
               [United States] is not 'playing fast and loose with the                
               courts'.  As pointed out by * * * [the United States],                 
               the issues in this case were not and could not have                    
               been litigated in the tax court case.  The issues in                   
               this case involve the relationship between the Carpen-                 
               ters [petitioners] and plaintiff [the foundation] and                  
               the EOCC entities and plaintiff [the foundation].  This                
               case involves the propriety of certain tax levies,                     
               rather than the assessment of taxes.  The court will                   
               not apply the doctrine of judicial estoppel in this                    
               case.  [Citations omitted; emphasis added.]                            
               With respect to the United States' contention that the Modoc           
          levy for EOCC's tax liability was proper, the District Court held           
          that the transfer of the Modoc property from EOCC to New EOCC and           





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