- 7 -
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
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011