- 14 -
unavailable." Bartel v. Commissioner, 54 T.C. 25, 32 (1970);
McMillan v. United Sates, 14 AFTR 2d 5704, , 64-2 USTC par.
9720, at 93,839 (S.D. W. Va. 1964); see Johnson, "The Taxpayer's
Duty of Consistency", 46 Tax Law Rev. 537, 538, 544-549 (1991).
This Court has found that the duty of consistency applies
when:
"(1) the taxpayer has made a representation or
reported an item for tax purposes in one year,
(2) the Commissioner has acquiesced in or relied on
that act for that year, and
(3) the taxpayer desires to change the representation,
previously made, in a later year after the statute of
limitations on assessments bars adjustments for the initial
year." [LeFever v. Commissioner, supra at 543 (quoting
Beltzer v. United States, 495 F.2d 211, 212 (8th Cir.
1974)).]
Respondent argues that the foregoing triune standard has
been satisfied. Specifically, respondent argues Elwood made a
representation in the stipulation of settled issues that the
value of the Grapevine property for purposes of computing the
Estate's Federal estate tax liability was $1,420,000. Respondent
argues that, due to the relationship between Elwood and
petitioner, petitioner was bound by this representation.
Respondent relied on this representation, allowing such value to
be used in computing the Estates's Federal estate tax liability.
Finally, respondent argues that petitioner is now maintaining a
position inconsistent with the prior representation, after the
decision in the Estate case has become final, barring subsequent
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