- 7 - 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 andPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
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