Mary Catherine Pierce - Page 18

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               (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.                        
               Arguably, petitioner has satisfied the more procedural of              
          the five conditions in that a final judgment was rendered in                
          Pierce I, the parties are identical in both cases, and the                  
          controlling facts and applicable legal rules have not changed.              
          Further, the negligence issue, which petitioner asserts is the              
          same as that being decided in the current case, was litigated and           
          essential to the Pierce I decision.  However, petitioner does not           
          satisfy the one substantive condition that is the core                      
          requirement for application of collateral estoppel.                         
               Collateral estoppel promotes judicial economy by preventing            
          successive litigation of identical issues.  The issue in the                
          current case is not, in all respects, identical with the issue              
          decided in Pierce I and, therefore, does not satisfy this                   
          condition for application of collateral estoppel.  The issue                
          litigated in Pierce I was whether petitioner and Mr. Pierce were            
          liable for negligence penalties provided for in section                     
          6662(b)(1).  Negligence, as defined in section 6662(c), includes            
          “any failure to make a reasonable attempt to comply with the * *            
          * [Code]”.  Negligence also includes a “lack of due care or                 






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