Estate of Carol Andrews, Deceased, Robert Andrews, Special Administrator, and Robert Andrews - Page 4

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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          1998, Hoyt’s enrolled agent status was revoked.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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