- 25 -
T.C. 235, 250 (1997); Green v. Commissioner, T.C. Memo. 1998-274
(collateral estoppel); see also Gustafson v. Commissioner, 97
T.C. 85, 89-92 (1991) (if an affirmative defense is not pleaded,
it is deemed waived). We do, however, consider the contents of
these orders in our factual inquiry.
First, the December 1993 order states that the District
Court would not decide what amount should be withheld as income
tax from the recovery. Rather, the District Court left it up to
the class members, "based on their particular situation", to
determine the amount of tax due. Contrary to petitioner's
assertion, this order does not, on its face, establish that
petitioner's recovery is excludable under section 104(a)(2).
The District Court's March 1995 order does, however, state
that the facts and circumstances of the class action involved
tort-like and personal injury-like claims for emotional distress.
This order also states that the District Court "was closely
7(...continued)
dispute:
(1) The issue in the second suit must be identical in all
respects with the one decided in the first suit.
(2) There must be a final judgment rendered by a court of
competent jurisdiction.
(3) Collateral estoppel may be invoked against parties and
their privies to the prior judgment.
(4) The parties must actually have litigated the issues and the
resolution of these issues must have been essential to the prior
decision.
(5) The controlling facts and applicable legal rules must
remain unchanged from those in the prior litigation.
Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 NextLast modified: May 25, 2011