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to claim the marital deduction for the property only (1) if it
was not terminable interest property, or (2) if it was terminable
interest property for which a QTIP election was made.
The Estate of James Letts, Jr., clearly indicated that the
property was not QTIP. James P. Letts III, as executor for the
Estate of James Letts, Jr., answered "No" to the question on line
4 of the return, "Do you elect to claim a marital deduction for
qualified terminable interest property (QTIP) under section
2056(b)(7)?" Consistent with that answer, he did not separately
list any terminable interest property in Schedule M. Thus, the
estate eliminated one of the two grounds stated above for
deducting the value of the Item II trust property as a marital
deduction. The only other ground for including the value of the
Item II trust property in the marital deduction would be if the
Item II trust property was not terminable interest property.
Thus, the Estate of James Letts, Jr., represented that the Item
II trust property was not terminable interest property.
For purposes of the duty of consistency, a taxpayer's
treatment of an item on a return can be a representation that
facts exist which are consistent with how the taxpayer reports
the item on the return. For example, a failure to report income
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