Joseph B. Campbell - Page 16

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          and 1994 were made in the same form and under the same                      
          contractual agreements as the per capita distributions made in              
          1992 (the year at issue in Campbell I).  In addition, petitioner            
          conceded at trial that the facts in this case, save the years in            
          dispute and amounts in controversy, are identical to the facts in           
          Campbell I.12  Because the context in which the issues of this              
          case arise has not changed since Campbell I, normal rules of                
          preclusion apply.  See Montana v. United States, 440 U.S. at 161.           

               12The only fact that arguably changed since Campbell I is              
          the fact that the Department of the Interior approved the tribe’s           
          “Gaming Revenue Allocation Ordinance” (ordinance) on or about               
          Nov. 20, 1994.  Petitioner argues that before the approval of the           
          ordinance in 1994, the tribe “had the right to expect that its              
          per capita distributions could be received as tax-free per capita           
          distributions under its Constitution and Corporate Charter.”  We            
          reject petitioner’s argument.  Contrary to petitioner’s argument,           
          the clear language of 25 U.S.C. sec. 2710(b)(3), which was                  
          enacted in 1988 (before Campbell I), provides that per capita               
          distributions may be made “only if--(A) the Indian tribe has                
          prepared a plan to allocate revenues to uses authorized by                  
          paragraph (2)(B); (B) the plan is approved by the Secretary as              
          adequate, particularly with respect to uses described in clause             
          (i) or (iii) of paragraph (2)(B); * * *; and  (D) the per capita            
          payments are subject to Federal taxation and tribes notify                  
          members of such tax liability when payments are made.”  In other            
          words, the tribe must have had an approved plan in effect in                
          order to make the per capita distributions in the first instance.           
          The statute does not allow tribes without such a plan to make               
          tax-free per capita distributions.  Petitioner is not entitled to           
          rely on the tribe’s compliance, or noncompliance, with this                 
          statute in order to escape taxation.  Further, the decision in              
          Campbell I concerned tax year 1992, was tried in 1996, and was              
          decided in 1997; therefore, petitioner was aware of the fact that           
          the ordinance had been approved at the time of trial and could              
          have made an identical argument at trial in Campbell I.  Based on           
          the above, the fact that the plan was not approved until 1994               
          does not alter the factual circumstances under which the per                
          capita distributions were made and is of no consequence to our              

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