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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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