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of one of many documentary exhibits collected in that
investigation.
Here the taxpayer is attempting to turn the shield of the
statute of limitations into a sword and to turn on its head a
doctrine intended to minimize the availability of a double
deduction. The disputed element of the duty of consistency is
the Government's reliance on the taxpayer's representation as to
the treatment of an item on the return; if the taxpayer has
disclosed on the return or during an audit questions about that
treatment, the Government cannot show reliance. Under the
circumstances of this case, we do not believe that disclosure of
facts suggesting possibly erroneous treatment of an item 2 months
prior to the expiration of the period of limitations is
sufficient to terminate reliance for purposes of the duty of
consistency doctrine.
Finally, petitioner argues that respondent should be
estopped from making the adjustment in issue here because of the
success of the argument in Agro Science that the deduction
allowed to similarly situated partnerships was invalid. In this
regard, this case is indistinguishable from Herrington, and the
result should be the same. See also Alling v. Commissioner, 102
T.C. 323, 333-336 (1994), affd. without published opinion sub
nom. Handelman v. Commissioner, 57 F.3d 1063 (2d Cir. 1995),
affd. without published opinion sub nom. Eisenman v.
Commissioner, 67 F.3d 291 (3d Cir. 1995) ("the substance of * * *
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