Joseph B. Campbell - Page 15

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          Sunnen, 333 U.S. at 602.  “If the legal matters determined in the           
          earlier case differ from those raised in the second case,                   
          collateral estoppel has no bearing on the situation.”  Id. at               
          599-600; see also Sydnes v. Commissioner, 647 F.2d 813, 814-815             
          (8th Cir. 1981), affg. 74 T.C. 864 (1980).                                  
               Petitioner’s principal argument against the application of             
          collateral estoppel is that the controlling facts and applicable            
          legal rules either have changed or differ significantly from                
          those considered in Campbell I.  We reject petitioner’s principal           
               Except for the taxable years and the amounts at issue, the             
          relevant facts in Campbell I and in this case are identical.  The           
          per capita distributions made to petitioner during 1991, 1993,              

               11In Commissioner v. Sunnen, 333 U.S. at 601 (fn. ref.                 
          omitted), the Supreme Court suggested that “if the relevant facts           
          in the two cases are separable, even though they be similar or              
          identical, collateral estoppel does not govern the legal issues             
          which recur in the second case.”  It is not clear whether                   
          petitioner is relying on the separable facts doctrine articulated           
          in Sunnen; however, even if he is, we still must reject his                 
          argument.  The separable facts doctrine has been questioned and             
          limited by the Supreme Court in Montana v. United States, 440               
          U.S. 147 (1979).  See also Peck v. Commissioner, 904 F.2d at 527-           
          528 (“The Supreme Court has rejected the separable facts doctrine           
          in general terms, but has implied that it might have continuing             
          validity in the tax context.”).  In addition, two Courts of                 
          Appeals have concluded that the separable facts doctrine is not             
          good law after Montana.  See American Med. Intl., Inc. v.                   
          Secretary of HEW, 677 F.2d 118, 120 (D.C. Cir. 1981) (per                   
          curiam); Hicks v. Quaker Oats Co., 662 F.2d 1158, 1167 (5th Cir.            
          1981).  Whether or not the separable facts doctrine has any                 
          continued viability, we conclude that there is no basis for                 
          applying the doctrine in this case.                                         

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