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an affirmative defense is antithetical to the principle that
questions concerning the Court's jurisdiction can be raised at
any time, even after the case is tried and briefed, and even by
the Court sua sponte." Gustafson v. Commissioner, 97 T.C 85, 90
(1991) (citing Smith v. Commissioner, 96 T.C. 10, 13-14 (1991);
Kahle v. Commissioner, 88 T.C. 1063 n.3 (1987)).
As our discussion indicates, however, there appears to be
little reason to continue this case. The bankruptcy court has
decided all issues of fact and law, and we are bound to those
findings by the principle of res judicata. That court expunged
the liability for 1978 and the additions to tax for 1978, 1981,
and 1982. It further held that petitioner was liable for the
deficiencies for 1981 and 1982. Consistent with the order of the
bankruptcy court, Mr. Freytag and respondent have filed a
stipulation of settled issues in which it is agreed that there is
no deficiency for 1978; there are no additions to tax for the
years 1978, 1981, and 1982; and there are deficiencies in the
amounts of $53,598 and $36,901 for the years 1981 and 1982,
respectively.
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