- 5 - relied on that representation or report for that year, and (3) the taxpayer attempts to change that representation or report in a subsequent year, after the period of limitations has expired with respect to the year of the representation or report, and the change is detrimental to the Commissioner. LeFever v. Commissioner, supra at 543; see also Herrington v. Commissioner, supra at 758; Shook v. United States, 713 F.2d 662, 667 (11th Cir. 1983); Beltzer v. United States, 495 F.2d 211, 212 (8th Cir. 1974); Cluck v. Commissioner, 105 T.C. 324, 332 (1995). When these requirements are met, the Commissioner may treat the previous representation by the taxpayer as true, although, in fact, it is not. Herrington v. Commissioner, supra. The duty of consistency is an affirmative defense raised by respondent, and respondent has the burden of showing that it applies. Rule 142(a). Before we consider whether or not the three elements of the duty of consistency are present in this case, we address petitioner's argument that the duty of consistency is not a viable equitable doctrine. Petitioner relies on two alternative positions for this argument. First, petitioner argues that the Court of Appeals for the Ninth Circuit does not recognize the duty of consistency in tax deficiency proceedings. In the alternative, petitioner argues that the recent Supreme Court decision in United States v. Brockamp, 519 U.S. ___, 117 S. Ct. 849 (1997), questions the continued viability of the duty of consistency as equitable relief in the Tax Court.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
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