- 24 - alleged wrongful conduct, the basis on which petitioner received his recovery, is not a personal injury. Cf. Commissioner v. Schleier, 515 U.S. 323 (1995). Further, the focus of the settlement in the class action was to make class members, such as petitioner, "economically whole" from the effects of their loss of employment. Therefore, economic factors were not merely used as a yardstick to measure the extent of the injury; rather, they were the harm for which petitioner received his compensation. This is evidenced by the joint stipulation of settlement, by the independent trustee's findings as reflected in the motion for distribution of notice and release form, by the inquiries made in the proof of claim form, and finally, by the proof of claim as completed and submitted by petitioner. D. The District Court's Orders Finally, we consider the orders issued by the District Court in December 1993 and March 1995. As a preliminary matter, we observe that because res judicata and collateral estoppel are affirmative defenses and neither was pleaded by petitioner, they are deemed waived.7 See Rule 39; Monahan v. Commissioner, 109 7 We note, however, that even if petitioner had pleaded these affirmative defenses, res judicata and collateral estoppel would not apply if for no other reason than the characterization of the settlement's tax consequences was not essential to the prior proceeding. See Peck v. Commissioner, 90 T.C. 162, 166-167 (1988), affd. 904 F.2d 525 (9th Cir. 1990), setting forth the following five conditions that must be satisfied prior to application of issue preclusion in the context of a factual (continued...)Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
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