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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