Virginia M. Marten - Page 9




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          ascertainable economic benefits under the policy in the years at            
          issue; therefore, she constructively received the premium                   
          payments.                                                                   
               Ms. Marten also argues in her motion for further                       
          reconsideration that Mr. Lane should be judicially estopped from            
          denying that the premium payments were intended for Niklas’                 
          health care.  Ms. Marten claims that Mr. Lane’s present position            
          that the policy was for her support is inconsistent with his                
          prior position before the superior court (which that court                  
          accepted) that the policy was to provide for Niklas’ care.                  
               The Tax Court, as well as most Federal Courts of Appeals,              
          have accepted the doctrine of judicial estoppel.4  See Helfand v.           
          Gerson, 105 F.3d 530 (9th Cir. 1997); United States ex rel. Am.             
          Bank v. C.I.T. Constr., Inc., 944 F.2d 253, 257-259 (5th Cir.               
          1991); McKinnon v. Blue Cross & Blue Shield, 935 F.2d 1187, 1192-           
          1193 (11th Cir. 1991); Allen v. Zurich Ins. Co., 667 F.2d 1162,             
          1166-1168 (4th Cir. 1982); Huddleston v. Commissioner, 100 T.C.             
          17, 27-29 (1993).  But see Chrysler Credit Corp. v. Country                 
          Chrysler, Inc., 928 F.2d 1509, 1520 n.10 (10th Cir. 1991).                  
          Judicial estoppel is an equitable doctrine which operates to                
          “prevent parties from taking positions that are inconsistent with           


               4  We note that the Court of Appeals for the Ninth Circuit,            
          the court to which this case is appealable, has adopted the                 
          doctrine of judicial estoppel.  See Helfand v. Gerson, 105 F.3d             
          530 (9th Cir. 1997); Golsen v. Commissioner, 54 T.C. 742 (1970),            
          affd. 445 F.2d 985 (10th Cir. 1971).                                        





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