Burke v. Commissioner
United States Tax Court
Both petitioners and respondent have moved for summary adjudication with regard to a question of res judicata. The question is whether the rule of res judicata precludes respondent from litigating an additional deficiency in tax (and additions to tax) on account of petitioners' alleged fraud. In a prior proceeding in this Court, respondent moved for leave to amend the answer to raise the fraud issue. That motion was denied.
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Both petitioners and respondent have moved for summary adjudication with regard to a question of res judicata. The question is whether the rule of res judicata precludes respondent from litigating an additional deficiency in tax (and additions to tax) on account of petitioners' alleged fraud. In a prior proceeding in this Court, respondent moved for leave to amend the answer to raise the fraud issue. That motion was denied. Respondent did not appeal our denial, and our decision in the prior proceeding is now final. Held: The rule of res judicata is not a bar to respondent's raising the issue…
1ConcurrenceSwift, J.
In an effort to avoid the legal issue the parties in this case have presented to us, the majority opinion implicitly reaffirms our prior opinion in Zackim v. Commissioner, 91 T.C. 1001 (1988). The opinion specifically states that “we can decide this case without overruling Zackim.” Majority op. p. 49.
Our prior opinion in Zackim, however, has been soundly reversed by the Court of Appeals for the Third Circuit on the basis of what the Court of Appeals believed to be a clearly erroneous interpretation of the relevant statutory scheme. Zackim v. Commissioner, 887 F.2d 455 (3d Cir. 1989).
Further,…
2Cases cited12 opinions
- United States v. Ron Pair Enterprises, Inc.Supreme Court of the United States · 1989
- Commissioner v. SunnenSupreme Court of the United States · 1948
- Caminetti v. United StatesSupreme Court of the United States · 1917
- United States v. American Trucking AssociationsSupreme Court of the United States · 1940
- Badaracco v. CommissionerSupreme Court of the United States · 1984
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