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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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