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Estate of James Letts, Jr., did not provide any facts to
respondent that would show that the Item II trust property was
terminable interest property. For example, the estate tax return
of the Estate of James Letts, Jr., did not include a copy of his
will. The Commissioner may rely on a presumption of correctness
of a return or report that is given to the Commissioner under
penalties of perjury. Hughes & Luce, L.L.P. v. Commissioner,
supra. The time to assess tax against the Estate of James Letts,
Jr., expired. Thus, the second element has been satisfied.
Herrington v. Commissioner, supra; Mayfair Minerals, Inc. v.
Commissioner, supra; Spencer Medical Associates v. Commissioner,
supra; Hughes & Luce, L.L.P. v. Commissioner, supra.
c. Whether the Taxpayer Is Changing a Representation
Previously Made After the Time To Assess Tax Has
Passed
Petitioner represented on its estate tax return that the
Item II trust property was terminable interest property. That
representation is inconsistent with the representation made on
the return of the Estate of James Letts, Jr., that the Item II
trust property was not terminable interest property. Decedent
died after the time to assess tax against the Estate of James
Letts, Jr., had passed. Thus, the third element for the duty of
consistency is satisfied.
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