Donald Ertz - Page 4

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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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