- 4 -
Although petitioners did not become partners in Washoe
Ranches and TBS 89-1 until 1991, they began claiming related
losses and credits on their 1990 Federal income tax return.4
Petitioners also carried back unused investment credits to 1987
3(...continued)
reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned. Fed. R. Evid.
201(b). Petitioners are not asking the Court to take judicial
notice of facts that are not subject to reasonable dispute.
Instead, petitioners are asking the Court to take judicial notice
of the truth of assertions made by taxpayers and the Commissioner
in other Hoyt-related cases. Such assertions are not the proper
subject of judicial notice.
The doctrine of judicial estoppel prevents a party from
asserting in a legal proceeding a claim that is inconsistent with
a position successfully taken by that party in a previous
proceeding. New Hampshire v. Maine, 532 U.S. 742, 749 (2001).
Among the requirements for judicial estoppel to be invoked, a
party’s current litigating position must be “clearly
inconsistent” with a prior litigating position. Id. at 750-751.
Petitioners have failed to identify any clear inconsistencies
between respondent’s current position and his position in any
previous litigation.
4 Mr. Lindley testified and the parties stipulated that
petitioners did not become partners until 1991. However, the
timing of petitioners’ losses and deductions is unclear, and
their 1987-90 Federal income tax returns are not in the record.
The Forms 4340, Certificate of Assessments, Payments, and Other
Specified Matters, for petitioners’ 1987-89 taxable years
indicate that refunds were issued as the result of “tentative
carryback [claims]”. The Form 4340 for 1990 indicates that
petitioners claimed a refund on their tax return. We infer that,
while petitioners did not become partners until 1991, they began
claiming Hoyt-related losses and credits in 1990. Such treatment
is consistent with the timing of Hoyt-related deductions claimed
by other Hoyt partners. See Keller v. Commissioner, T.C. Memo.
2006-166 (taxpayer became a partner in a Hoyt partnership in 1995
but began claiming deductions on his 1994 return).
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