Magdalena Pacheco - Page 17




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              The Court, on the evidence offered, finds that petitioner               
         participated meaningfully throughout the prior proceeding.                   
              Exception From Res Judicata                                             
              Absent an exception from res judicata, petitioner is barred             
         under section 6015(g)(2) from seeking relief under subsection (c)            
         in this proceeding.  Petitioner’s counsel cites Smaczniak v.                 
         Commissioner, 998 F.2d 238 (5th Cir. 1993), revg. T.C. Memo.                 
         1991-87, arguing that the Court of Appeals for the Fifth Circuit             
         relied on “common sense” to craft an exception to ameliorate the             
         strict application of res judicata.  This case is not bound by               
         the law of the Fifth Circuit, and in any event, Smaczniak is                 
         distinguishable.                                                             
              In Smaczniak, the Commissioner voluntarily redetermined the             
         taxpayer’s liability after a final decision was entered.  Id. at             
         242-243.  The Court of Appeals held that this was akin to a                  
         “subsequent modification of the significant facts” so as to                  
         render inapplicable the effect of res judicata for the same                  
         taxable years in a subsequent proceeding.  Id. at 243.  In the               
         prior proceeding, however, respondent did not voluntarily                    
         redetermine petitioner’s liabilities after the entry of the final            
         decision.  Therefore, Smaczniak is not applicable.                           
              The Court has considered the remaining arguments raised in              
         petitioner’s trial memorandum and supplement trial memorandum and            
         finds that they are unconvincing.  The Court has no authority to             







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