Acme Steel Company (formerly known as Interlake, Inc., and now known as Acme Metals, Inc.) and Consolidated Subsidiaries - Page 38

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               Despite the foregoing, petitioner insists that the                     
          bankruptcy court’s conclusion that the 1985 tentative refund was            
          a nonrebate refund has somehow stripped the Court of                        
          jurisdiction.  Ignoring Hannan v. Commissioner, 52 T.C. 787                 
          (1969), petitioner is essentially asserting that we have no                 
          jurisdiction because there is no deficiency.  According to                  
          petitioner, there is no deficiency because the bankruptcy court’s           
          opinion that the 1985 tentative refund is a nonrebate refund                
          should be extended to the 1981 and 1984 tentative refunds.                  
          Petitioner further contends that, under the collateral estoppel             
          doctrine, respondent is precluded from litigating whether the               
          tentative refunds for 1981 and 1984 are nonrebate refunds.                  
               We disagree with petitioner: we hold that petitioner may not           
          rely on the doctrine of collateral estoppel to preclude                     
          respondent from litigating whether the tentative refunds                    
          petitioner was paid are nonrebate refunds.  Not only have the               
          technical requirements of collateral estoppel not been satisfied,           
          but–-even if they had been satisfied-–petitioner’s change of                
          position would invoke the “injustice” exception to collateral               
          estoppel.  Having concluded that petitioner’s collateral estoppel           
          argument does not preclude us from considering the merits of                
          petitioner’s claim, we also disagree with petitioner that the               
          tentative refunds it applied for and received are nonrebate                 








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