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b. Whether This Is a Question of Law
Petitioner contends that the duty of consistency does not
apply if the inconsistency concerns a question of law and both
the taxpayer and Commissioner have equal access to the facts.
See LeFever v. Commissioner, 100 F.3d at 788; Herrington v.
Commissioner, 854 F.2d at 758. However, petitioner does not
dispute that the doctrine applies if the inconsistency involves
an issue of fact or a mixed question of fact and law. LeFever v.
Commissioner, 100 F.3d at 788; Herrington v. Commissioner, supra;
Mayfair Minerals, Inc. v. Commissioner, 456 F.2d 622, 623 (5th
Cir. 1972), affg. 56 T.C. 82 (1971).
Petitioner contends that the duty of consistency does not
apply here because there is no inconsistency concerning a
question of fact. Petitioner contends that the only question is
whether the Estate of James Letts, Jr., must strictly comply with
QTIP election requirements before a QTIP election is made, which
petitioner contends is a question of law.
We disagree. The inconsistency at issue is whether the
property James Letts, Jr., left to decedent is terminable
interest property. This is a mixed question of fact and law. It
is not purely a question of law.
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