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F.2d 1162, 1167 n.3 (4th Cir. 1982); and “playing fast and loose
with the courts”, Scarano v. Central R.R., 203 F.2d 510, 513 (3d
Cir. 1953); see Huddleston v. Commissioner, supra.
Judicial estoppel must, however, be applied with caution.
Daugharty v. Commissioner, T.C. Memo. 1997-349, affd. without
published opinion 158 F.3d 588 (11th Cir. 1998). Such caution is
necessary in order “to avoid impinging on the truth-seeking
function of the court because the doctrine precludes a
contradictory position without examining the truth of either
statement.” Teledyne Indus., Inc. v. NLRB, supra at 1218; see
also Allen v. Zurich Ins. Co., supra at 1166; Fazi v.
Commissioner, 105 T.C. 436, 445-446 (1995). The courts have
adopted the doctrine of judicial estoppel to protect the
integrity of proceedings before them, and the courts possess
discretion in invoking the doctrine. Fazi v. Commissioner, supra
at 446; see also In re Cassidy, 892 F.2d 637, 642 (7th Cir.
1990).
With this background we now consider whether we should
decide the issue, the applicability of judicial estoppel, in the
context of petitioners’ motions for partial summary judgment. In
this connection, we note that the parties do not agree as to the
facts surrounding the failure to include any cash accumulation in
the bankruptcy proceeding. Principally, the parties do not agree
on whether the failure to include a cash accumulation was a
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