Virginia M. Marten - Page 10




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          those previously asserted by the parties and accepted by courts             
          and that would result in inappropriate and prejudicial                      
          consequences to the courts.”  Huddleston v. Commissioner, supra             
          at 26.  The doctrine focuses on the relationship between a party            
          and the courts, and it is intended to protect the latter.  See In           
          re Cassidy, 892 F.2d 637, 641 (7th Cir. 1990).  Whether or not to           
          apply the doctrine is within the court’s sound discretion.  It              
          should be applied with caution in order “to avoid impinging on              
          the truth-seeking function of the court because the doctrine                
          precludes a contradictory position without examining the truth of           
          either statement.”  Daugherty v. Commissioner, T.C. Memo. 1997-             
          349 (citing Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1218              
          (6th Cir. 1990)).                                                           
               We refuse to apply the doctrine of judicial estoppel in the            
          present case.  Assuming arguendo that Mr. Lane’s position in this           
          proceeding (that the policy was for Ms. Marten’s support) is                
          inconsistent with the position he took before the superior court            
          (that the policy was for Niklas’ care), there is no resulting               
          inappropriate or prejudicial consequence to this Court by hearing           
          his argument.   We stated in Marten I that “it appears that at              
          least part of the premium payments was to ensure Niklas’                    
          continued care.”  We nonetheless concluded that the premium                 
          payments were alimony pursuant to pre-DEFRA section 71 and Lester           
          v. Commissioner, 366 U.S. 299 (1961).  In Lester v. Commissioner,           






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