Estate of Mildred Geraldine Letts, Deceased, James P. Letts III and Joanne L. Magbee, Coexecutors - Page 22

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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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