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2. Elements of the Duty of Consistency
The taxpayer's duty of consistency applies if:
(a) The taxpayer made a representation of fact or
reported an item for tax purposes in one tax year;
(b) the Commissioner acquiesced in or relied on that
fact for that year; and
(c) the taxpayer desires to change the representation
previously made in a later tax year after the earlier year has
been closed by the statute of limitations.9 LeFever v.
Commissioner, 103 T.C. 525, 543 (1994), affd. 100 F.3d 778 (10th
Cir. 1996); see also Kielmar v. Commissioner, 884 F.2d 959, 965
(7th Cir. 1989); Herrington v. Commissioner, supra at 758; Shook
v. United States, 713 F.2d 662, 667 (11th Cir. 1983); Hess v.
United States, 210 Ct. Cl. 483, 537 F.2d 457, 463 (1976); Beltzer
v. United States, 495 F.2d 211, 212 (8th Cir. 1974); Cluck v.
Commissioner, 105 T.C. 324, 332 (1995). When these requirements
are met, the Commissioner may act as if the previous
8(...continued)
precedent all of the decisions of the former U.S. Court of
Appeals for the Fifth Circuit filed by Sept. 30, 1981. Bonner v.
City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
9 These elements were first stated in McMillan v. United
States, 14 AFTR 2d 5704, 64-2 USTC par. 9720 (S.D. W. Va. 1964).
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