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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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