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& Power Co. v. Commissioner, 40 T.C. 597, 654-655
(1963), vacated and remanded pursuant to stipulation
(2d Cir., Feb. 15, 1965) (holding that the decision in
Lewis v. Reynolds, supra, was controlling and allowing
a reduction in an overpayment claimed by the taxpayer);
Estate of Carruth v. Commissioner, 28 T.C. 871, 880
(1957). Applying the doctrine of Lewis v. Reynolds,
supra, to this case, we find that even though
assessment and collection of petitioner’s tax liability
is now barred by the statute of limitations, respondent
has the right to retain prior timely payments to the
extent they do not exceed the amount of petitioner’s
actual tax liability. [Footnotes omitted.]
Our above-mentioned holding in Bachner is equally applicable
to the facts in this case. The Bankruptcy Court did not
determine LGA’s tax liability for the taxable years 1993 and
1994. That is abundantly clear from a review of the record in
this case. We hold that respondent is not collaterally estopped
from determining petitioner’s correct tax liabilities for taxable
years 1993 and 1994 in order to determine if there are tax
overpayments in those years because of a net operating loss
carryback from the taxable year 1995.
From our review of the record, we also find that the
question of whether or not LGA and Sunrise were separate entities
for tax purposes was not litigated by the Bankruptcy Court. The
bankruptcy order confirming petitioner’s third amended plan and
consolidating the bankruptcy estates of petitioner and Sunrise
makes no reference to the determination of Federal taxes.
Petitioner’s third amended plan did not specifically state that
the substantive consolidation of the estates of petitioner and
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