Estate of Mildred Geraldine Letts, Deceased, James P. Letts III and Joanne L. Magbee, Coexecutors - Page 13

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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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