Letantia Bussell - Page 35

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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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