If you want the whole nine yards on collateral estoppel, nothing beats Judge Wherry’s lengthy footnotes, numbers 22 and 23, in 137 T. C. 1, Randall J. and Karen G. Thompson. See my blogpost “the Great Dissenter,” 12/28/11.

But if you want the quick-and-dirty, cheat-sheet, version, here’s The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being (and even designates orders to help out the hard-laboring blogger), s/a/k/a The Inveterate, Implacable, Illustrious, Indisputable, Irrefragable, Indefatigable Foe of the Partitive Genitive, and Old China Hand, His Honor Judge Mark V. Holmes.

This is the story of Edward J. S. Picardi, Docket No. 5753-14, filed 6/9/15.

Edward J. S. has had a rocky time of it. Convicted of Section 7201 tax evasion, his appeal to Eighth Circuit gave him no joy. So IRS moves for partial summary judgment on the fraud chops appurtenant to Edward J. S.’s bushelbasketful of deficiencies.

The caselaw, of course, says that criminal conviction for tax evasion may establish fraudulent intent.

But to have collateral estoppel get IRS there:

“The issue in the two suits must be identical;

“there must be a final judgment rendered by a court of competent jurisdiction;

“the parties must be identical or in privity with each other;

“the parties must actually have litigated the issue and the resolution of the issue must have been essential to the prior judgment, and

“the controlling facts and law must have remained unchanged.” Order, at p.2.

Edward J. S. claims his trial counsel was ineffective, and “…many of the controlling facts in his criminal case were not properly presented and thus collateral estoppel cannot apply. He has alternative pigeonholes for this argument — he contends that this is a case where the facts or the law has changed, or that the ineffective assistance of counsel creates a ‘special circumstance’ warranting an exception to the application of collateral estoppel.” Order, at p. 2.

Facts or law can change where there is a great lapse of time between case 1 and case 2, or where law can change from year to year (and tax law does that annually nowadays).

But that’s not the case here, says Judge Holmes, whether or not Edward J. S.’s trial counsel blew it.

“We don’t think ineffective assistance of counsel has anything to do with the facts and law. The caselaw has long held proof of fraudulent intent under § 7201 is the same as the intent that the Commissioner has to prove under § 6663. And the facts here are precisely the same — Picardi’s intent in filing his returns from 1999 through 2003 — no matter how bad his first trial counsel was.” Order, at p. 2 (Citations omitted).

And argue ineffective assistance of counsel on appeal of your criminal case, not in Tax Court. That argument is a nonstarter.