Joseph F. and Caroline Enos - Page 35

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         (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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