- 18 -
the issue of an offsetting deduction in Affiliated Foods, Inc. v.
Commissioner, supra, and was sustained on that issue with respect
to petitioner-delivered currency given to one vendor, petitioner
failed on brief to argue the issue with respect to vendors
generally and, on account of that failure, was deemed to have
conceded the issue. Id. n.11. The issue of offsetting
deductions was not fully litigated in the prior litigation, and
petitioner is not precluded from raising it here. See Coors v.
Commissioner, 60 T.C. 368, 392 (1973) (Commissioner not barred
from litigating capitalization issue that, in prior litigation
between parties, he had abandoned, where no findings had been
made by Court with regard to issue, and it was not necessary to
result reached), affd. 519 F.2d 1280 (10th Cir. 1975). Nor is
petitioner precluded from arguing for an offsetting adjustment to
gross income from sales, because that issue was not raised in the
prior litigation. See Monahan v. Commissioner, supra at 240.
3. Difference in Controlling Facts
The fact that petitioner is free to argue for offsetting
deductions or adjustments does not mean that it is free to argue
that it has no gross income (or no gross receipts) on account of
vendor payments to member stores of petitioner-delivered currency
if that issue was settled in the prior litigation. See Jaggard
v. Commissioner, 76 T.C. 222, 224 (1981) (issue-by-issue
determination of whether collateral estoppel applies).
Page: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
Last modified: November 10, 2007