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$7,144,200 and $9,185,400. Petitioner’s counsel on brief now
assert contrary positions. Petitioner argues the value of
decedent’s beneficial interest is less than $3 million, and
decedent had less than a full beneficial ownership.
In Helfand v. Gerson, supra at 535-536, the Court of Appeals
for the Ninth Circuit recently stated:
The integrity of the judicial process is threatened
when a litigant is permitted to gain an advantage by
the manipulative assertion of inconsistent positions,
factual or legal.
* * * * * * *
Judicial estoppel seeks to prevent the deliberate
manipulation of the courts * * *
Petitioner’s assertion of both full ownership of the PCAB
shares and a value for the shares in excess of the consideration
received by decedent was essential in order for petitioner to
succeed in the District Court litigation. Petitioner’s new
position on brief in the case before us is inconsistent with the
position taken in the District Court.
We cannot in good conscience allow petitioner to benefit
from having claimed full beneficial ownership in one court and
then to come to this Court and make an inconsistent argument in
an attempt to avoid the incidence of gift tax. If petitioner
received full value for what decedent owned and gave up, decedent
cannot have been entitled to any recovery in the District Court
litigation. Petitioner is allowed to have it only one way.
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