Alec Jeffrey Megibow - Page 21

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               (3) Collateral estoppel may be invoked against parties                 
               and their privies to the prior judgment.                               
               (4) The parties must actually have litigated the issues                
               and the resolution of these issues must have been                      
               essential to the prior decision.                                       
               (5) The controlling facts and applicable legal rules                   
               must remain unchanged from those in the prior                          
               litigation. [Peck v. Commissioner, supra at 166-167;                   
               citations omitted.]                                                    
               These prerequisites are not met in the instant case.  No               
          legal proceeding has ever addressed, much less established, that            
          petitioner is entitled to the Schedule C deductions claimed for             
          1997, 1998, and 1999.  While petitioner has litigated a previous            
          tax year, resulting in Megibow v. Commissioner, T.C. Memo. 1998-            
          455, with respect to 1993, that proceeding provides neither a               
          legal nor a factual basis for applying collateral estoppel here.            
               From a legal standpoint, income taxes are levied on an                 
          annual basis, such that each year represents a new liability and            
          a separate cause of action.  Commissioner v. Sunnen, 333 U.S.               
          591, 598-600 (1948); Fla. Peach Corp. v. Commissioner, 90 T.C. at           
          682.  Given this principle, collateral estoppel would not operate           
          to establish entitlement to deductions in one year based merely             
          on an allowance of similar deductions in a different year or                
          years.  See Barmes v. Commissioner, T.C. Memo. 2001-155                     
          (rejecting attempts to apply collateral estoppel to depreciation            
          deductions based on a prior litigated tax year), affd. 89 AFTR 2d           
          2002-2249, 2002-1 USTC par. 50,312 (7th Cir. 2002); see also                
          Adolph Coors Co. v. Commissioner, 519 F.2d 1280, 1283 (10th Cir.            






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