Estate of Hilda Ashman, Deceased, Phillip Ashman, Personal Representative - Page 1

                                 T.C. Memo. 1998-145                                  

                               UNITED STATES TAX COURT                                

                         ESTATE OF HILDA ASHMAN, DECEASED,                            
               PHILLIP ASHMAN, PERSONAL REPRESENTATIVE, Petitioner v.                 
                    COMMISSIONER OF INTERNAL REVENUE, Respondent                      

               Docket No. 15578-96.                   Filed April 22, 1998.           

                 In 1990, D received a distribution from a qualified                  
               pension plan and reported that it was timely rolled                    
               over pursuant to sec. 402, I.R.C.  In 1993, D received                 
               a distribution from the transferee plan.  R determined                 
               that the 1993 distribution is taxable income to D.  The                
               1990 distribution was not timely rolled over, and the                  
               period to assess tax for 1990 is expired.  P contends                  
               that the 1993 distribution is not taxable because the                  
               taxable event occurred in 1990.  R argues that P is                    
               estopped under the duty of consistency from arguing                    
               that the 1990 distribution was taxable.  P argues that                 
               appellate venue in this case would be to the Court of                  
               Appeals for the Ninth Circuit, which does not recognize                
               the doctrine of the duty of consistency in tax                         
               deficiency cases.                                                      
                 Held:  The 1993 distribution is taxable under the                    
               duty of consistency.                                                   

               Steven R. Mather and Elliott H. Kajan, for petitioner.                 
               T. Ian Russell, for respondent.                                        

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