Kristine A. Cluck - Page 14

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          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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