- 43 -
supra at 26. Acceptance by a court does not require that the
party being estopped prevailed in the prior proceeding with
regard to the ultimate matter in dispute, but rather only that a
particular position or argument asserted by the party in the
prior proceeding was accepted by the court. In re Cassidy, 892
F.2d 637, 641 (7th Cir. 1990); Edwards v. Aetna Life Ins. Co.,
supra at 599 n.5; Huddleston v. Commissioner, supra at 26.
Although judicial estoppel is somewhat similar to collateral
estoppel, there are substantial differences between the two
doctrines. See Teledyne Indus., Inc. v. NLRB, supra at 1220.
Thus, judicial estoppel may apply in a case “where neither
collateral estoppel nor equitable estoppel * * * would
apply.” Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166-1167 (4th
Cir. 1982).
C. Discussion of Partnership Level Theft Loss Deductions
1. Determination of Whether the Sheep Partnerships Were
Victims of Theft
As previously stated, in order to sustain a theft loss
deduction, petitioners must prove the following elements: (1)
That each sheep partnership was the victim of a theft pursuant to
the law of the jurisdiction where the loss was sustained; (2) the
year that each partnership discovered the loss from the theft;
and (3) the amount of theft loss that each partnership suffered.
See Yates v. Commissioner, T.C. Memo. 1988-565.
a. The Occurrence of a Theft
Petitioners have the burden of establishing a theft of
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