Salih M. Zamzam and Mariam Zamzam - Page 7




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          ZMDI.  Thus, we conclude the Zamzams received constructive                  
          dividends, not compensation.                                                
               Petitioners further contend that respondent is collaterally            
          estopped from contending that the payments to the Zamzams were              
          not compensation.  We disagree.  On February 28, 1997, the U.S.             
          District Court for the Western District of Virginia at Abingdon,            
          Virginia, held, pursuant to section 7429 (i.e., relating to a               
          jeopardy assessment), that these payments could have been                   
          deducted by the corporation as compensation.  Collateral estoppel           
          precludes the relitigation of any issue of fact or law that is              
          actually litigated and necessarily determined by a valid and                
          final judgment.  See Montana v. United States, 440 U.S. 147, 153            
          (1979); Wright v. Commissioner, 84 T.C. 636, 639 (1985).  The               
          issue before us, however, is the ultimate tax liability, whereas            
          in the section 7429 jeopardy proceeding the issue was the                   
          reasonableness of the provisional jeopardy assessment.  Because             
          the issues in the deficiency case are not identical to those                
          litigated in the section 7429 proceeding, collateral estoppel is            
          not applicable.  See Peck v. Commissioner, 90 T.C. 162, 166-167             
          (1988), affd. 904 F.2d 525 (9th Cir. 1990).  Further, the                   
          legislative history of section 7429 states that a trial court’s             
          decision in a section 7429 proceeding “will have no effect upon             
          the determination of the correct tax liability in a subsequent              








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