Joseph B. Campbell - Page 20

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          Commissioner, 90 T.C. at 168.                                               
               If the taxpayers’ case was not effectively presented at                
               the first trial it was their fault; affording them a                   
               second opportunity in which to litigate the matter,                    
               with the benefit of hindsight, would contravene the                    
               very principles upon which collateral estoppel is based                
               and should not be allowed.  [Jones v. United States,                   
               supra at 136.]                                                         
          See also Peck v. Commissioner, 904 F.2d at 530.                             
               On brief, petitioner also made another alternative argument            
          to the effect that the “legal relationship between the Tribe and            
          the United States has changed over the tax years at issue since             
          no one from the Tribe has questioned the constitutionality” of              
          the IGRA.  Petitioner argued that the IGRA is unconstitutional              
          insofar as it affords the United States the right to claim that             
          per capita distributions are subject to Federal taxation, because           
          under California v. Cabazon Band of Mission Indians, 480 U.S. 202           
          (1987), and Seminole Tribe v. Butterworth, 658 F.2d 310 (5th Cir.           
          1981), tribes have the right to economic self-determination over            
          all matters (including gaming operations).                                  
               A taxpayer is not collaterally estopped from challenging a             
          position on constitutional grounds not raised in the earlier                
          proceeding.  See Jaggard v. Commissioner, 76 T.C. 222, 224-225              
          (1981); Neeman v. Commissioner, 26 T.C. 864, 866-877 (1956),                

          Campbell I (1992), petitioner makes no distinction between the              
          years at issue in this case that occurred before 1992 and the               
          years at issue in this case that occurred after 1992.                       

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