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DGE 85-5 issued petitioner Schedules K-1, Partner’s Share of
Income, Credits, Deductions, etc., for 1985 and 1986.5 The
Schedules K-1 reflected petitioner’s shares of DGE 85-5’s losses
and his cost bases in “property eligible for investment credit”.
Petitioner timely filed his 1985 and 1986 Federal income tax
returns, reporting total partnership losses from DGE 85-5 of
$42,378 and $36,324, respectively. Petitioner reported
4(...continued)
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). Petitioner is not asking the Court to take judicial
notice of facts that are not subject to reasonable dispute.
Instead, petitioner is 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.
Petitioner has failed to identify any clear inconsistencies
between respondent’s current position and his position in any
previous litigation.
5 The Schedules K-1 for 1985 and 1986 were issued jointly
to petitioner and Mrs. Ertz. Petitioner and Mrs. Ertz jointly
filed their Federal income tax returns for all relevant years.
Petitioner and Mrs. Ertz also jointly filed the Form 1045,
Application for Tentative Refund. However, the notice of
determination was addressed only to petitioner. To avoid
confusion, we will address the schedules, returns, and forms, as
if they were issued only to petitioner.
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Last modified: May 25, 2011