- 35 -
(D. Mass. Sept. 26, 1994). Respondent contends that the
principles of collateral estoppel require us to follow the
decisions in those cases. Respondent first raised the issue of
collateral estoppel in respondent’s opening brief. Rule 39
requires respondent to affirmatively plead collateral estoppel in
respondent’s answer to the petition.16 Respondent’s failure to
specifically plead the collateral estoppel issue in his answer or
in an amended or amendment to his answer constitutes a waiver of
the issue, and accordingly, we will not address the issue. See
Rules 39, 41; see also Bonaire Dev. Co. v. Commissioner, 76 T.C.
789, 802-803 (1981), affd. 679 159 (9th Cir. 1982); Jefferson v.
Commissioner, 50 T.C. 963, 966-967 (1968).
Petitioners contend that they are entitled to an abatement
of interest that has accrued since 1977 on their 1971 tax
liability. Petitioners failed to pay the taxes reported on their
1971 income tax return, and those taxes were only satisfied when
15(...continued)
necessary for the enforcement of the provisions of the
Act, � 21a(15). 11 U.S.C. � 11(a)(15).
16Rule 39 provides:
Rule 39. Pleading Special Matters
A party shall set forth in the party’s pleading any
matter constituting an avoidance or affirmative defense,
including res judicata, collateral estoppel, estoppel,
waiver, duress, fraud, and the statute of limitations. A
mere denial in a responsive pleading will not be sufficient
to raise any such issue.
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