Thomas E. Johnston and Thomas E. Johnston, Successor in Interest to Shirley L. Johnston, Deceased, et al. - Page 27




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               (3) Collateral estoppel may be invoked against 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.                                       
               (5) The controlling facts and applicable legal rules                   
               must remain unchanged from those in the prior                          
               litigation. [Peck v. Commissioner, supra at 166-167;                   
               citations omitted.]                                                    
          Additionally, where collateral estoppel premised on a State court           
          proceeding is sought to be used offensively in Federal court,               
          reference is made to the controlling State law to determine the             
          propriety of such offensive use.  Bertoli v. Commissioner, 103              
          T.C. 501, 508 (1994).  California courts have sanctioned use of             
          offensive collateral estoppel.  See Imen v. Glassford, 247 Cal.             
          Rptr. 514, 518-519 (Cal. 1988); Estate of Gump v. Gump, 2 Cal.              
          Rptr. 2d 269, 286 (Cal. Ct. App. 1991).                                     
               C.  Analysis                                                           
               Having considered the state of the record in these cases,              
          the points as to which respondent would have us apply collateral            
          estoppel, and the matters which could remain for trial, we                  
          conclude that the purposes of the doctrine would not be served at           
          this juncture by resort to issue preclusion.  On a fundamental              
          level, as previously discussed, collateral estoppel exists to               
          prevent unnecessary and redundant litigation.  Yet given the                
          particular facts under review, we see little to be gained when              
          measured against this standard.                                             








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