Estate of Mildred Geraldine Letts, Deceased, James P. Letts III and Joanne L. Magbee, Coexecutors - Page 11

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          deduction for terminable interest property if that estate does              
          not make the QTIP election.  These rules permit the predeceasing            
          spouse's estate to choose QTIP treatment and thus defer taxation            
          of a terminable interest, at the price of having it included in             
          the gross estate of the surviving spouse under section 2044.                
               C.   Whether the Duty of Consistency Applies                           
               1.   Background                                                        
               The duty of consistency6 prevents a taxpayer from benefiting           
          in a later year from an error or omission in an earlier year                
          which cannot be corrected because the time to assess tax for the            
          earlier year has expired.  Herrington v. Commissioner, 854 F.2d             
          755, 757 (5th Cir. 1988), affg. Glass v. Commissioner, 87 T.C.              
          1087 (1986); Southern Pac. Transp. Co. v. Commissioner, 75 T.C.             
          497, 838-839 (1980).  The duty of consistency prevents a taxpayer           
          who has benefited from a past representation from adopting a                
          position inconsistent with that taken in a year barred by the               
          statute of limitations; the doctrine thus prevents a taxpayer               


               5(...continued)                                                        
          dying after Dec. 31, 1981.  Economic Recovery Tax Act of 1981,              
          Pub. L. 97-34, sec. 403(d) and (e)(1), 95 Stat. 172, 302, 305.              
               6 The duty of consistency is also referred to as quasi-                
          estoppel.  E.g., Cluck v. Commissioner, supra at 331; Mayfair               
          Minerals, Inc. v. Commissioner, 56 T.C. 82 (1971), affd. 456 F.2d           
          622 (5th Cir. 1972); see Johnson, "The Taxpayer's Duty of                   
          Consistency", 46 Tax L. Rev. 537, 544 (1991).                               







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