- 34 - partnerships, the discrepancies in the partnerships in which petitioner was involved, and the continuous warnings being sent by respondent--was unreasonable under the circumstances. In summary, petitioner asserts that his investigation yielded no indication of wrongdoing by Mr. Hoyt, and that an “average” taxpayer would have been unable to uncover Mr. Hoyt’s fraud. However, we conclude that petitioner was nevertheless negligent in not adequately investigating the partnership and/or seeking qualified independent advice concerning it. B. Deception and Fraud by Mr. Hoyt Petitioner next argues that he should not be liable for the negligence penalty because he was defrauded and otherwise deceived by Mr. Hoyt with respect to his investment in the Hoyt partnerships. In this regard, petitioner first argues that the doctrine of judicial estoppel bars application of the negligence penalty because the U.S. Government successfully prosecuted Mr. Hoyt for, in general terms, defrauding petitioner. Judicial estoppel is a doctrine that prevents parties in subsequent judicial proceedings from asserting positions contradictory to those they previously have affirmatively persuaded a court to accept. United States ex rel. Am. Bank v. C.I.T. Constr., Inc., 944 F.2d 253, 258-259 (5th Cir. 1991); Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598-599 (6th Cir. 1982). Both this Court and the Court of Appeals for the SixthPage: Previous 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 Next
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