M. K. and J. C. H. - Page 10




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         underlying tax claim.  Without a final judgment on the merits,               
         res judicata cannot apply.                                                   
              Next we consider whether collateral estoppel precludes                  
         respondent from determining a deficiency larger than the one                 
         claimed in the bankruptcy proceeding.  Under the doctrine of                 
         collateral estoppel, or issue preclusion, the judgment in the                
         prior suit precludes, in the second cause of action, litigation              
         of issues actually litigated and necessary to the outcome of the             
         first action.  Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326              
         (1979).  In Montana v. United States, 440 U.S. 147 (1979), the               
         Supreme Court used a three-prong test to determine when the use              
         of collateral estoppel is appropriate.  The Supreme Court looked             
         at whether the issues in the subsequent litigation were, in                  
         substance, the same as those in the first case; whether the                  
         controlling facts or legal principles have significantly changed             
         since the first litigation; and whether other special                        
         circumstances warrant an exception to the normal rules of                    
         preclusion.  Id. at 155.  In Peck v. Commissioner, 90 T.C. 162,              
         166 (1988), affd. 904 F.2d 525 (9th Cir. 1990), we held that                 
         collateral estoppel applies in the context of a factual dispute              
         only when the following conditions are satisfied:  (1) The issue             
         in the second suit must be identical in all respects with the one            
         decided in the first suit; (2) there must be a final judgment                
         rendered by a court of competent jurisdiction; (3) collateral                






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