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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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