- 4 -
Petitioner argues that the 1993 GNA distribution is a
nontaxable return of principal. Petitioner contends that the
taxable event with respect to the GNA distribution occurred
during 1990, and not during 1993, because the 1990 pension
distribution was not timely rolled over pursuant to section
402(a). Respondent argues that petitioner is estopped under the
duty of consistency from denying that there was a timely rollover
of the 1990 pension distribution as reported on decedent's 1990
return. Petitioner argues that the duty of consistency is not a
viable judicial doctrine. Alternatively, petitioner argues that
the duty of consistency does not apply in this case.2
The duty of consistency, or quasi-estoppel, is an equitable
doctrine that prevents a taxpayer from adopting a position for a
particular year and, after the period of limitations has expired
for that year, adopting a contrary position that affects his or
her tax liability for an open year. E.g., Herrington v.
Commissioner, 854 F.2d 755, 757 (5th Cir. 1988), affg. Glass v.
Commissioner, 87 T.C. 1087 (1986); LeFever v. Commissioner, 103
T.C. 525, 541-542 (1994), affd. 100 F.3d 778 (10th Cir. 1996).
The duty of consistency applies when: (1) The taxpayer made a
representation or reported an item for Federal income tax
purposes in one year, (2) the Commissioner acquiesced in or
2 Petitioner also contends that respondent reneged on a
settlement proposal and asserted the duty of consistency on the
eve of trial. In this regard, petitioner argues that we should
not grant equitable relief to respondent through the duty of
consistency because respondent has unclean hands. We find this
aspect of petitioner's argument to be without merit.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011