- 21 - Petitioner points out that both it and the Estate of James Letts, Jr., represented that the Estate of James Letts, Jr., did not elect to treat the Item II trust property as QTIP. However, the fact that both estates made a consistent representation about the QTIP election does not erase the fact that the estates made inconsistent representations about whether the Item II trust property was terminable interest property. d. Conclusion We conclude that all three elements for the duty of consistency are satisfied. 5. Petitioner's Other Contentions a. Whether Applying the Duty of Consistency Circumvents the Statute of Limitations Petitioner contends that applying the duty of consistency here would improperly circumvent the statute of limitations. We disagree. It is well established that the duty of consistency arises only if the time to assess tax on the first tax return has passed. See R.H. Stearns Co. v. United States, 291 U.S. at 61; Kielmar v. Commissioner, 884 F.2d at 965; Herrington v. Commissioner, supra at 757; Hess v. United States, 537 F.2d at 463; Beltzer v. United States, 495 F.2d at 212; Cluck v. Commissioner, 105 T.C. at 331-332; McMillan v. United States, 14 AFTR 2d 5704, 64-2 USTC par. 9720 (S.D. W. Va. 1964).Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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