Abatti

The defendants have filed motions to dismiss the indictment on the grounds that an earlier decision adverse to the government in the Tax Court bars this criminal prosecution under the doctrine of collateral estoppel. The case arises from the transactions of a profitable farming operation owned and operated by defendant Ben Abatti and his brother Tony. Defendant Macklin, an accountant, prepared the Abattis’ tax returns during the years in question. Based upon the papers submitted by the parties and upon the arguments of counsel at a hearing on October 27, the court grants the defendants’ motions to dismiss.

I

FACTS AND ISSUES

The history of this case begins in the Tax Court. The Commissioner of Internal Revenue determined that defendant Ben Abatti, Ben’s brother Tony, and their wives had deficiencies in income tax for the years 1971, 1972, and 1973. The Abattis disputed the Commissioner’s claims and filed petitions for redetermination. The Tax Court set the case for trial on March 27,1978; on that date, after the government moved to continue the trial date, the Tax Court “reluctantly” reset the cases for trial on June 26. On June 7, because of the expected length of trial, the…