Robert D. Grossman, Jr. - Page 10

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          petitioner relies on our analysis in Cluck v. Commissioner, 105             
          T.C. 324 (1995).  In focusing on our determination in Cluck to              
          hold a taxpayer to the stipulation that the taxpayer’s husband              
          had entered into in an earlier proceeding, petitioner overlooks             
          the setting of Cluck.  In the earlier Cluck proceeding the                  
          taxpayer’s husband, as executor of his mother’s estate, had                 
          stipulated to a $1,420,000 date-of-death fair market value of               
          property included in the estate; decision was entered in that               
          estate tax case on the basis of this settlement stipulation; and            
          the taxpayer’s husband’s inherited portion of that property                 
          amounted to $355,000.  Cluck v. Commissioner, 105 T.C. at 329,              
          331.  The taxpayer’s husband then sold the property.  Id. at 331.           
          The taxpayer and her husband filed separate tax returns for the             
          year of the sale, but filed a joint tax return for a year to                
          which a claimed net operating loss was carried.  Id. at 326-327.            
          For purposes of determining the amount of the claimed net                   
          operating loss carryover to the joint tax return year it became             
          important to determine the taxpayer’s husband’s gain or loss on             
          the sale of the inherited property.  In Cluck the taxpayer                  
          contended that her husband’s basis in the inherited property was            
          really $625,000, and not the $355,000 that would have resulted              
          from the settlement of the estate tax case.  Id. at 331.                    
               The duty of consistency stops a party from unfairly                    
          benefiting from that party’s own error or omission under certain            





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