Estate of Mary D. Maggos - Page 21

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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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