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Hoyt’s enrolled agent status was revoked.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
partnerships.3
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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