M. K. and J. C. H. - Page 7




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         parties; prior judgment by a court of competent jurisdiction;                
         final judgment on the merits; and the same cause of action.  In              
         re A.H. Robins Co., 880 F.2d 694 (4th Cir. 1989); Republic Supply            
         Co. v. Shoaf, 815 F.2d 1046 (5th Cir. 1987).                                 
              In a substantially similar case to the case we consider, the            
         Court of Appeals for the Tenth Circuit addressed the issue of                
         whether the Commissioner is precluded by res judicata or                     
         equitably estopped from assessing deficiencies in connection with            
         tax liabilities already claimed in and allowed in lesser amounts             
         in a confirmed plan of reorganization.  In re DePaolo, 45 F.3d               
         373 (10th Cir. 1995).  In that case, the debtor filed for                    
         bankruptcy, and the Commissioner filed a proof of claim and                  
         amendments to the proof of claim which set forth the debtor’s tax            
         liability for the tax years 1984 through 1987.  The Commissioner             
         did not object to the debtor’s plan of reorganization, which was             
         confirmed by the bankruptcy court in 1988.  The debtor began                 
         making payments on his tax liability pursuant to the plan, and in            
         October 1989, the bankruptcy court issued an order closing the               
         bankruptcy proceedings.  Thereafter, the Commissioner audited the            
         debtor’s 1986 tax return and, as a result of the audit, issued a             
         notice of deficiency determining that the debtor owed an                     
         additional $12,000 in income tax and additions to tax of $2,024.             
         The debtor moved to reopen the bankruptcy proceedings, seeking a             
         declaratory judgment to determine the scope and effect of the                






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