M. K. and J. C. H. - Page 11




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         estoppel may be invoked against the parties and their privies to             
         the prior judgment; (4) the parties must actually have litigated             
         the issues, and the resolution of these issues must have been                
         essential to the prior decision; and, (5) the controlling facts              
         and applicable legal rules must remain unchanged from those in               
         the prior litigation.                                                        
              Here, petitioners’ tax liability was incorporated into their            
         plan for reorganization on the basis of respondent’s uncontested             
         proof of claim, which in turn was based on petitioners’ tax                  
         returns filed during the bankruptcy proceeding.  As we discussed             
         above, there is no indication that the merits of petitioners’ tax            
         liability were litigated in the bankruptcy proceeding or that the            
         plan was confirmed on the bases of the underlying merits of the              
         tax claims.  Because the bankruptcy court did not enter a                    
         judgment on the bases of the merits of the tax claim, respondent             
         is not precluded from determining a tax deficiency.  See Limited             
         Gaming of Am., Inc. v. Commissioner, T.C. Memo. 2001-273.                    
              To reflect the foregoing,                                               

                                                An appropriate order will            
                                            be issued.                                












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