Rodolfo Lizcano - Page 26




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          Federal tax return was improperly selected for audit in                     
          retaliation for his EEOC complaints and whistle blowing.  Thus,             
          petitioner seeks to relitigate the identical issue necessarily              
          decided in his District Court case.  This factor poses no                   
          obstacle to the application of collateral estoppel.                         
               5. Change in Circumstances                                             
               The fifth consideration for collateral estoppel is whether             
          there has been a change in the controlling facts or legal rules             
          since the earlier ruling.  Id.  The type of changes with which              
          this factor is concerned are factual changes stemming from                  
          subsequent events and legal changes wrought by intervening                  
          judicial decisions, statutory provisions, or regulatory                     
          promulgations.  Sunnen v. Commissioner, 333 U.S. 591, 599-601               
          (1948).  Respondent seeks to apply collateral estoppel to the               
          same facts considered by the District Court.  Petitioner has not            
          brought to the Tax Court’s attention, nor is this Court aware of,           
          any relevant changes in the applicable law via judicial                     
          decisions, statutory provisions, or regulatory promulgations that           
          have occurred since the District Court dismissed petitioner’s               
          case on December 14, 2004.  Accordingly, change in circumstances            
          also poses no bar to the application of collateral estoppel.                

               14(...continued)                                                       
          probability of error and applied even handedly to all individual            
          income tax returns.  The DIF scoring system was developed by                
          using the results of random audits historically known as the                
          Taxpayer Compliance Movement Program or by its acronym TCMP.                






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Last modified: March 27, 2008