George Maciel - Page 51

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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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