Affiliated Foods, Inc., A Corporation - Page 22




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          vendors were under no obligation to return to petitioner any                
          petitioner-delivered currency not paid to member stores or to               
          account to petitioner for their disposition of petitioner-                  
          delivered currency.  Petitioner’s dominion and control over                 
          petitioner-delivered currency was different in the audit years              
          than it was in the years subject to the prior litigation.                   
          Denying a party the right to litigate an issue is a matter that             
          requires circumspection.  Monahan v. Commissioner, 109 T.C. at              
          242.  On balance, we think that the interests of justice are                
          better served by allowing petitioner to litigate the control                
          issue afresh, in the light of the difference in facts from the              
          prior litigation.  See, e.g., Alexander v. Commissioner, 224 F.2d           
          788, 793 (5th Cir. 1955) (interests of justice not served by                
          holding barring taxpayer from showing change in facts concerning            
          partnership agreement subject to prior proceeding), affg. in                
          part, revg. in part and remanding 22 T.C. 318 (1954).                       
          Affiliated Foods, Inc. v. Commissioner, supra, does not preclude            
          petitioner from litigating the inclusion in gross income of                 
          petitioner-delivered currency.                                              
               D.  Conclusion                                                         
               Respondent’s affirmative defense of issue preclusion fails.            












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