Estate of Mildred Geraldine Letts, Deceased, James P. Letts III and Joanne L. Magbee, Coexecutors - Page 12

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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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