- 22 - 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.Page: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 NextLast modified: November 10, 2007