FMC Corporation and Subsidiaries - Page 17




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          of preclusion.  Montana v. United States, supra at 162; Meier v.            
          Commissioner, supra at 291-292.                                             
               Petitioner acknowledges that the satisfaction of these six             
          conditions would lead to the application of collateral estoppel.            
          Petitioner focuses solely on the first and fourth elements,                 
          arguing that these two elements have not been met.  Petitioner              
          argues that:  (1) The factual and legal issues here are different           
          than those issues in its case against Goldman, and (2) the issue            
          of whether it suffered a theft loss on account of Boesky’s                  
          insider trading was not actually litigated in the prior case                
          because, it contends, that issue was not necessary to a holding             
          there.  We address these two elements seriatim and then turn to             
          the sixth element concerning our discretion to find an exception            
          for special circumstances.                                                  
               1.  Similarity of Issues                                               
               Petitioner argues that the factual and legal issues here are           
          fundamentally different from those in its prior case.  Petitioner           
          asserts that the cases are different factually in that the prior            
          case decided only its limited claims against Goldman, whereas the           
          current case centers on the actions of Boesky in the context of a           
          Federal income tax deduction.  Moreover, petitioner asserts, the            
          cases are factually different in that the prior case did not                
          concern the current issue of whether the value of old FMC stock             
          was artificially inflated by Boesky’s illegal actions.  As to the           






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