Estate of Mildred Geraldine Letts, Deceased, James P. Letts III and Joanne L. Magbee, Coexecutors - Page 18

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          may be an implied statement of the facts relating to the                    
          taxpayer's receipt of the funds, which, under the duty of                   
          consistency, a taxpayer cannot later repudiate.  Wentworth v.               
          Commissioner, 244 F.2d 874, 875 (9th Cir. 1957) (not reporting              
          the receipt of funds on an income tax return was a representation           
          that the funds were a loan repayment), affg. 25 T.C. 1210 (1956);           
          Doneghy v. Alexander, 118 F.2d 521, 524 (10th Cir. 1941) (not               
          reporting interest in a trust as income was a representation that           
          the taxpayer had zero basis in the trust); Portland Oil Co. v.              
          Commissioner, 109 F.2d 479, 485-486 (1st Cir. 1940) (not                    
          reporting a sale in 1929 was a representation that the sale did             
          not occur in 1929), affg. 38 B.T.A. 757 (1938).10                           


               10 Cf. Ross v. Commissioner, 169 F.2d 483, 496 (1st Cir.               
          1948), revg. and remanding a Memorandum Opinion of this Court               
          dated Feb. 10, 1947.  In Ross, the taxpayer's position on his               
          earlier return was that his accrued salary was income when                  
          received.  On his later return, the taxpayer's position was that            
          he had constructively received his accrued salary in the earlier            
          year.  The U.S. Court of Appeals for the First Circuit did not              
          estop the taxpayer from taking this position on the second return           
          because the taxpayer's change in position related to a question             
          of law, not a question of fact.  Id. at 496.  Also, unlike this             
          case, in Ross, the Commissioner had detailed information about              
          the accrued salaries before assessment of the earlier return was            
          barred by the statute of limitations and before the later return            
          was filed.  Id. at 495-496.  Thus, Ross is distinguishable from             
          this case.                                                                  









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