Forkston Fireworks Mfg. Co., Inc. - Page 7

          petitioner is collaterally estopped by Anthony’s criminal tax               
          conviction under section 7206(2) from denying that petitioner               
          willfully understated its income on its 1988, 1989, and 1990 tax            
               The doctrine of collateral estoppel provides that, once an             
          issue of fact or law is “actually and necessarily determined by a           
          court of competent jurisdiction, that determination is conclusive           
          in subsequent suits based on a different cause of action                    
          involving a party to the prior litigation.”  Montana v. United              
          States, 440 U.S. 147, 153 (1979) (citing Parklane Hosiery Co. v.            
          Shore, 439 U.S. 322, 326 n.5 (1979)).  This Court in Peck v.                
          Commissioner, 90 T.C. 162, 166-167 (1988), affd. 904 F.2d 525               
          (9th Cir. 1990), set forth the following five conditions that               
          must be satisfied prior to application of collateral estoppel in            
          the context of a factual dispute:                                           
                    (1) The issue in the second suit must be identical in             
               all respects with the one decided in the first suit.                   

          respondent’s use of admissions from one docket in another docket.           
          See Rule 90(f): “Any admission made by a party under this Rule is           
          for the purpose of the pending action only and is not an                    
          admission by such party for any other purpose, nor may it be used           
          against such party in any other proceeding.”  To the same effect            
          is Rule 91(e).  Cf. New v. Commissioner, 92 T.C. 1146 (1989)                
          holding motions to vacate Rule 37(c) orders would be judged by              
          the same standard applied to a Rule 90(f) motion.  Marshall v.              
          Commissioner, 85 T.C. 267, 273 (1985), holding that deemed                  
          admissions under Rule 90(c) were sufficiently similar to deemed             
          admission under Rule 37(c) so as to satisfy respondent’s burden             
          for summary judgment.                                                       

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