- 20 -
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),
15(...continued)
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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