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Commissioner, T.C. Memo. 2002-234. Of course, this doctrine
“must be confined to situations where the matter raised in the
second suit is identical in all respects with that decided in the
first proceeding and where the controlling facts and applicable
legal rules remain unchanged.” Commissioner v. Sunnen, 333 U.S.
591, 599-600 (1948). “A prior conviction will estop a party from
contesting in a later civil suit any element necessarily
established in the criminal trial.”55 Considine v. United
States, 683 F.2d 1285, 1286 (9th Cir. 1982).
As the Court of Appeals for the Ninth Circuit concluded, the
intent to avoid tax under section 7206(1) and the filing of a
false return does not require a fraudulent intent. Id. at 1287;
see Wright v. Commissioner, supra at 641 (overruling a Tax Court
decision and following the Court of Appeals’ holding and
reasoning in Considine). “Because section 7206(1) does not
require a willful attempt to evade tax, a conviction under
section 7206(1), without more, does not establish fraudulent
intent.”56 Considine v. United States, supra at 1287. However,
55“[T]he question is whether the issue under section 6653(b)
is ‘identical in all respects’ to that decided under section
7206(1).” Wright v. Commissioner, 84 T.C. 636, 639 (1985).
56The Court of Appeals for the Ninth Circuit did determine
that the prior conviction did estop the taxpayer from contesting
that the return was willfully false and resulted in an
underpayment of tax; proof of falsity is a necessary element of
sec. 7206(1). Considine v. United States, 683 F.2d 1285, 1287
(continued...)
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