Gary W. McDonough - Page 4

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          Hoyt’s enrolled agent status was revoked.  In 2001, Hoyt was                
          convicted of criminal charges relating to the promotion of these            
               Petitioner reported partnership losses from TBS and TBS                
          1989-1 on his Form 1040, U.S. Individual Income Tax Return, for             
          1989 of $3,560 and $27,509, respectively, and for 1991 of $33,782           
          and $59,179, respectively.  Petitioner’s claim to the losses                
          resulted in the underreporting of his 1989 and 1991 taxable                 
          income.  On May 13, 2002, additional income taxes and interest              

               3 Petitioner asks the Court to take judicial notice of                 
          certain “facts” in other Hoyt-related cases and apply judicial              
          estoppel to “facts respondent has asserted in previous [Hoyt-               
          related] litigation”. The Court will do neither.                            
               A judicially noticeable fact is one not subject to                     
          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).  Petitioner is not asking the Court to take judicial                
          notice of facts that are not subject to reasonable dispute.                 
          Instead, petitioner is 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 a claim in a legal proceeding 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.            
          Petitioner has failed to identify any clear inconsistencies                 
          between respondent’s current position and his position in any               
          previous litigation.                                                        

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