- 22 - 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.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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