Estate of Mildred Geraldine Letts, Deceased, James P. Letts III and Joanne L. Magbee, Coexecutors - Page 21

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               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).                       








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