- 51 - 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...)Page: Previous 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 Next
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