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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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