Affiliated Foods, Inc., A Corporation - Page 17




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                    2.  Points Not at Issue in the Prior Litigation                   
               “Collateral estoppel applies only to an issue that was                 
          actually litigated and determined in a prior action, not to an              
          issue that might have been litigated.”  Anderson, Clayton & Co.             
          v. United States, 562 F.2d 972, 992 (5th Cir. 1977); see also               
          Commissioner v. Sunnen, 333 U.S. 591, 597-598 (1948).  As put by            
          the Supreme Court in Commissioner v. Sunnen, supra at 598:                  
          “Since the cause of action involved in the second proceeding is             
          not swallowed by the judgment in the prior suit, the parties are            
          free to litigate points which were not at issue in the first                
          proceeding, even though such points might have tendered and                 
          decided at that time.”  Moreover, it is well settled that each              
          taxable year is the origin of a new liability and of a separate             
          cause of action.  Id.; see also Estate of Hunt v. United States,            
          309 F.2d 146, 148 (5th Cir. 1962).  In Cloud v. Commissioner,               
          T.C. Memo. 1976-27, we held that the taxpayers were not                     
          collaterally estopped from challenging the Commissioner’s                   
          disallowance of their deductions of certain expenses under a                
          theory different from the losing theory they had advanced in                
          litigation concerning the same types of expenses for prior years.           
               Petitioner’s assignments of error to respondent’s failure to           
          allow it offsetting deductions or adjustments to gross income               
          from sales do raise issues that were neither litigated nor                  
          resolved in the prior litigation.  Although petitioner did raise            







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