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delineated by the Court of Appeals for the Seventh Circuit, where
appeal in these cases would ordinarily lie. See Golsen v.
Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir.
1971).
As espoused by the Court of Appeals for the Seventh Circuit,
judicial estoppel is applied only where the prior position is
“clearly inconsistent” and the party to be estopped convinced the
court to accept its position in the earlier litigation. In re
Cassidy, 892 F.2d 637, 641 (7th Cir. 1990). In the view of the
Court of Appeals for the Seventh Circuit, the requisite
acceptance by the court may occur where there has been either a
judgment or a settlement in the earlier litigation. Kale v.
Obuchowski, supra at 361-362. The Court of Appeals for the
Seventh Circuit has summarized the doctrine as follows:
The doctrine of judicial estoppel requires * * * that
the party sought to be estopped have obtained a
favorable judgment or settlement (Kale v. Obuchowski,
* * *) on the basis of a legal or factual contention
that he wants to repudiate in the current litigation.
* * * [McNamara v. City of Chicago, 138 F.3d 1219,
1225 (7th Cir. 1998).]
Judicial estoppel rests with the court’s discretion and is
“‘applied with caution to avoid impinging on the truthseeking
function of the court’”. Levinson v. United States, 969 F.2d
260, 265 (7th Cir. 1992) (quoting Teledyne Indus., Inc. v. NLRB,
supra at 1219); see also Fazi v. Commissioner, 105 T.C. 436, 445
(1995).
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