George Johnson, Jr. - Page 7

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            Herrington v. Commissioner, supra at 758 (citing Beltzer v.                               
            United States, 495 F.2d 211, 212 (8th Cir. 1974)); see also Cluck                         
            v. Commissioner, supra at 332.  If all of the elements are                                
            present, the Commissioner may act as though the previous                                  
            representation is true, even if it is not, because the taxpayer                           
            is prevented from denying its truth.  Herrington v. Commissioner,                         
            supra at 758.                                                                             
                  With respect to the first element of the duty of                                    
            consistency, respondent alleges that petitioner made                                      
            representations to respondent that JPS was an S corporation.  In                          
            particular, respondent alleges that the initial representation                            
            occurred when petitioner filed the Form 2553 electing S                                   
            corporation status, and that petitioner engaged in subsequent                             
            representations during taxable years 1977-80 by causing JPS to                            
            file tax returns as an S corporation (Forms 1120-S), and by                               
            including pass-through income and loss from JPS on his tax                                
            returns (Forms 1040) for the years in issue.  We first note that                          
            the record contains no Forms 1120-S filed by JPS and no Forms                             
            1040 filed by petitioner.  Thus, there is no evidence in the                              
            record with respect to those forms from which we can make a                               
            factual determination as to any representation by petitioner; we                          
            have only respondent's allegations on brief, which petitioner                             








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