Estate of Mildred Geraldine Letts, Deceased, James P. Letts III and Joanne L. Magbee, Coexecutors - Page 19

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               Petitioner listed the three elements for the duty of                   
          consistency in its brief, but did not argue that the first                  
          element is not satisfied.11  We conclude that the first element             
          for the duty of consistency is satisfied.                                   
                    b.   Whether the Commissioner Acquiesced in or Relied             
                         on the Reporting of the Item                                 
               Petitioner contends that respondent did not acquiesce in or            
          rely on anything in the return of the Estate of James Letts, Jr.,           
          because respondent did not examine it.  We disagree.                        
               The Commissioner acquiesces in or relies on a fact if a                
          taxpayer files a return that contains an inadequately disclosed             
          item of which the Commissioner was not otherwise aware, the                 
          Commissioner accepts that return, and the time to assess tax                
          expires without an audit of that return.  Herrington v.                     
          Commissioner, 854 F.2d at 758; Mayfair Minerals, Inc. v.                    
          Commissioner, 56 T.C. 82, 91 (1971), affd. 456 F.2d 622 (5th Cir.           
          1972); see Spencer Medical Associates v. Commissioner, T.C. Memo.           
          1997-130; Hughes & Luce, L.L.P. v. Commissioner, T.C. Memo. 1994-           
          559, affd. on another issue 70 F.3d 16 (5th Cir. 1995).  The                


               11 Petitioner concedes that the negative QTIP answer is a              
          representation on the return of the Estate of James Letts, Jr.,             
          for purposes of these elements.                                             









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