Ralph Howell - Page 13




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          statements in the U.S. Court of Appeals for the Fifth Circuit’s             
          opinion in the case of another AMCOR investor, Beall v. United              
          States, 467 F.3d 864 (5th Cir. 2006) affg. 335 F. Supp. 2d 743,             
          (E.D. Tex. 2004).10  The relevant portion of the Court of                   
          Appeals’ opinion reads as follows:  “The IRS did not return the             
          partnerships’ books and records until 1993, and when the IRS did            
          return them, some had been lost and the remainder were in                   
          disarray.”  Id. at 866.                                                     
               The doctrine of issue preclusion, or collateral estoppel,              
          provides that once an issue of fact or law is “‘actually and                
          necessarily determined by a court of competent jurisdiction, that           
          determination is conclusive in subsequent suits based on a                  
          different cause of action involving a party to the prior                    
          litigation.’”  Monahan v. Commissioner, 109 T.C. 235, 240 (1997)            
          (quoting Montana v. United States, 440 U.S. 147, 153 (1979)).               
          The following five conditions must be satisfied before                      
          application of issue preclusion in the context of a factual                 
          dispute:  (1) The issue in the second suit must be identical in             
          all respects with the one decided in the first suit; (2) there              
          must be a final judgment rendered by a court of competent                   
          jurisdiction; (3) collateral estoppel may be invoked against                

               10  Petitioner does not appear to request that the Court               
          take judicial notice of the “facts” in Beall v. United States,              
          467 F.3d 864 (5th Cir. 2006).  We note, however, that taking                
          judicial notice would be inappropriate in this matter.  See                 
          Abelein v. Commissioner, T.C. Memo. 2007-24.                                






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