Joseph P. and Marilyn Schneller - Page 11

          indebtedness in that year.                                                         
                Even assuming, arguendo, that the character of the amounts                   
          dispersed to petitioners from Delivery was that of a dividend, we                  
          still believe respondent should prevail on the grounds that                        
          petitioners are precluded by the duty of consistency from denying                  
          that the amounts were loans.  See Bartel v. Commissioner, 54 T.C.                  
          25 (1970).                                                                         
                Petitioners consistently maintained that the shareholder                     
          accounts represented loans, not dividends.  The accounts were                      
          written off only shortly after the audit of years 1982 through 1984                
          was resolved.  That was the first time petitioners had taken the                   
          position that the amounts received in prior years were dividends.                  
          The statute of limitations had closed on those prior years.                        
                A taxpayer who obtains a benefit by taking a position in one                 
          year cannot disavow that position in a later year to the detriment                 
          of the Government.  See Commissioner v. Liberty Bank & Trust Co.,                  
          59 F.2d 320, 325 (6th Cir. 1932); see also Commissioner v. National                
          Alfalfa Dehydrating & Milling Co., 417 U.S. 134, 149 (1974) (citing                
          Higgins v. Smith, 308 U.S. 473, 477 (1940); Beltzer v. United                      
          States, 495 F.2d 211 (8th Cir. 1974)).                                             
          Issue 3.  Accuracy-Related Penalty                                                 
                The final issue is whether petitioners are liable for the 20-                
          percent accuracy-related penalty for underpayment of tax                           
          attributable to negligence or disregard of rules or regulations.                   
          Sec. 6662(a) and (b)(1).  Petitioners contend that they should not                 

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