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from claiming that he or she should have paid more tax before and
so avoiding the present tax. Eagan v. United States, 80 F.3d 13,
16 (1st Cir. 1996); Lewis v. Commissioner, 18 F.3d 20, 26 (1st
Cir. 1994), vacating and remanding in part T.C. Memo. 1992-391.
Courts have applied the duty of consistency to prevent taxpayers
from permanently excluding income that is taxable in some year,7
e.g., Grayson v. United States, 437 F. Supp. 58, 60 (N.D. Ala.
1977), or from deducting the same expense in 2 or more taxable
years, e.g., Robinson v. Commissioner, 181 F.2d 17, 18 (5th Cir.
1950), affg. 12 T.C. 246 (1949).
The roots of the taxpayer's duty of consistency are found in
R.H. Stearns Co. v. United States, 291 U.S. 54 (1934), in which
the Supreme Court applied the duty based on the principle that no
one may base a claim on an inequity of his or her own making.
Id. at 61-62; Alamo Natl. Bank v. Commissioner, 95 F.2d 622, 623
(5th Cir. 1938) ("It is no more right to allow a party to blow
hot and cold as suits his interest in tax matters than in other
relationships"), affg. 36 B.T.A. 402 (1937).8
7 In Estate of Shelfer v. Commissioner, 103 T.C. 10 (1994),
revd. 86 F.3d 1045 (11th Cir. 1996), the Commissioner did not
contend that the duty of consistency applied, nor did we decide
whether it applied.
8 The U.S. Court of Appeals for the Eleventh Circuit, the
court to which this case is appealable, adopted as binding
(continued...)
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