Vincent Michael Coomes - Page 9

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          necessary and essential to a judgment on the merits.  Fourth,               
          collateral estoppel can be invoked only against parties and their           
          privies who were part of the prior litigation.  Id.; see also               
          Montana v. United States, supra at 153-155; M.J. Wood Associates,           
          Inc. v. Commissioner, T.C. Memo. 1998-375.                                  
               Petitioner pleaded nolo contendere to charges under section            
          7203 for willfully failing to file Federal income tax returns and           
          pay taxes.  Not a single issue, including petitioner’s tax                  
          liabilities and additions to tax for the years at issue, was                
          actually litigated during petitioner’s criminal proceeding as a             
          result of his nolo plea.  In the criminal proceeding a judicial             
          determination did not occur with respect to petitioner’s tax                
          liability since it was not litigated nor was it an essential                
          element of the Government’s case.  See Hickman v. Commissioner,             
          supra at 538.  Consequently, petitioner cannot invoke collateral            
          estoppel to limit his tax liability to the amount of restitution            
          ordered by the District Court.4  See id.; see also Morse v.                 
          Commissioner, T.C. Memo. 2003-332.                                          




               4This does not, however, change the fact that the District             
          Court ordered petitioner to pay restitution.  Given the factual             
          circumstances of this case, we believe that the restitution                 
          ordered was to be paid to respondent.  We therefore expect                  
          petitioner’s tax liability to be offset by any payments of                  
          restitution petitioner made.  See Toney v. Commissioner, T.C.               
          Memo. 2003-333; Wallace v. Commissioner, T.C. Memo. 2000-49; cf.            
          M.J. Wood Associates, Inc. v. Commissioner, T.C. Memo. 1998-375.            





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