Estate of Hilda Ashman, Deceased, Phillip Ashman, Personal Representative - Page 5

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          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.                           


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