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her burden of showing that any portion of the underpayment was
not attributable to fraud.
D. Period of Limitations Under Section 6501(c)
After a return is filed, the Commissioner generally has 3
years within which to assess a deficiency in a civil tax case.
Sec. 6501(a). However, in the case of a false or fraudulent
return that is filed with the intent to evade tax, the tax may be
assessed at any time. Sec. 6501(c). Since we conclude that
petitioner’s 1996 return was such a return, we also conclude that
the period for assessment remains open. Id.; see also Considine
v. United States, 683 F.2d 1285, 1288 (9th Cir. 1982).
III. Judicial Estoppel
Petitioner argues that the Court should reject respondent’s
determination on the basis of judicial estoppel. We disagree.
Under the equitable doctrine of judicial estoppel, a court in its
discretion may preclude a party from asserting a position
contrary to a position that the party affirmatively persuaded
that or another court to accept in the same or a previous
judicial proceeding. Huddleston v. Commissioner, 100 T.C. 17, 26
(1993); see also New Hampshire v. Maine, 532 U.S. 742 (2001);
Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782-783
(9th Cir. 2001). Factors that courts may consider in deciding
whether to apply judicial estoppel include: (1) Whether a
party’s later position is “clearly inconsistent” with its earlier
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