Anthony and Gloria Donnora - Page 13

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          (within the meaning of sec. 6663).  E.g., Amos v. Commissioner,             
          43 T.C. 50, 55 (1964), affd. 360 F.2d 358 (4th Cir. 1965).                  
               Respondent contends that partial summary judgment should               
          also be granted because Anthony is collaterally estopped from               
          denying that there is an underpayment of his joint tax liability            
          for 1988, 1989, and 1990.  The underpayment need not be addressed           
          separately, because under section 6653(b) for 1988 and section              
          6663 for 1989 and 1990 the existence of an underpayment is an               
          element of fraud.                                                           
               Both sides recognize that Anthony is permitted to litigate             
          the amount of the underpayment.  Also, based on the materials               
          thus far submitted, it does not appear that Gloria is estopped              
          from disputing any matter that relates to her liability in the              
          instant case, including (if it turns out to be relevant)                    
          Anthony’s fraud.  Moore v. United States, 360 F.2d 353, 357-358             
          (4th Cir. 1966); Rodney v. Commissioner, 53 T.C. 287, 306-311               
          (1969).                                                                     
               Respondent also contends that partial summary judgment                 
          should be granted to collaterally estop Anthony from denying that           
          there was a willful omission of income on Forkston’s income tax             
          return.  This contention is raised for the first time in                    
          respondent’s Reply to Petitioners’ Response to Respondent’s                 
          Motion for Summary Judgment.  The collateral estoppel portion of            
          respondent’s answer (par. 8) did not refer to any conviction of             





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