Mary Catherine Pierce - Page 1

                                 T.C. Memo. 2003-188                                  

                               UNITED STATES TAX COURT                                

                        MARY CATHERINE PIERCE, Petitioner v.                          
                    COMMISSIONER OF INTERNAL REVENUE, Respondent                      

               Docket No. 8557-01.              Filed June 30, 2003.                  

                    P seeks relief, under sec. 6015, I.R.C.,                          
                    from income tax liabilities that were                             
                    assessed in accord with this Court’s holding                      
                    in an earlier opinion.  In this proceeding, P                     
                    failed to plead, as an affirmative defense,                       
                    collateral estoppel as to one of the factual                      
                    issues in controversy, as required in Rule 39                     
                    of this Court’s Rules of Practice and                             
                    Procedure.  P orally raised collateral                            
                    estoppel in her opening statement at the                          
                    beginning of the trial, and R did not object                      
                    or address the question of collateral                             
                    estoppel until R did so in his posttrial                          
                    brief.  No additional evidence is required to                     
                    decide whether any holding in our prior                           
                    opinion would result in an estoppel.  Rule                        
                    41(b)(1) of this Court’s Rules of Practice                        
                    and Procedure provides that an issue may be                       
                    tried by implied consent where the issue was                      
                    not specifically pleaded.  R contends that                        
                    P’s failure to specifically plead an                              

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