Timothy Dean Strong - Page 8

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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.                 
               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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