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through 2003, Hoyt was the tax matters partner of each Hoyt
partnership. From approximately 1980 through 1997, Hoyt was a
licensed enrolled agent, and as such, he represented many of the
Hoyt partners before the Internal Revenue Service (IRS). In
1998, Hoyt’s enrolled agent status was revoked. Hoyt was
convicted of various criminal charges in 2000.5
Beginning in 1984 until at least 1987, petitioners claimed
losses and credits on their Federal income tax returns arising
from their involvement in the Hoyt partnerships. Petitioners
also carried back unused investment credits to 1981, 1982, and
5 Petitioners ask the Court to take judicial notice of
certain “facts” in other Hoyt-related cases and apply judicial
estoppel to “facts respondent has asserted in previous [Hoyt-
related] litigation”. We do neither.
A judicially noticeable fact is one not subject to
reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned. Fed. R. Evid.
201(b). Petitioners are not asking the Court to take judicial
notice of facts that are not subject to reasonable dispute.
Instead, petitioners are asking the Court to take judicial notice
of the truth of assertions made by taxpayers and the Commissioner
in other Hoyt-related cases. Such assertions are not the proper
subject of judicial notice.
The doctrine of judicial estoppel prevents a party from
asserting in a legal proceeding a claim that is inconsistent with
a position successfully taken by that party in a previous
proceeding. New Hampshire v. Maine, 532 U.S. 742, 749 (2001).
Among the requirements for judicial estoppel to be invoked, a
party’s current litigating position must be “clearly
inconsistent” with a prior litigating position. Id. at 750-751.
Petitioners have failed to identify any clear inconsistencies
between respondent’s current position and his position in any
previous litigation.
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