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Petitioner argues that appellate venue would be to the Court
of Appeals for the Ninth Circuit. It is not entirely clear from
the record to which Court of Appeals this case is appealable.
The parties did not stipulate the decedent’s domicile at the time
of her death. The estate’s personal representative resided in
California when the petition was filed. We assume that this case
is appealable to the Court of Appeals for the Ninth Circuit for
the purpose of addressing petitioner’s argument.
Petitioner concedes that the Court of Appeals for the Ninth
Circuit has applied the duty of consistency in tax refund cases.
See Building Syndicate Co. v. United States, 292 F.2d 623 (9th
Cir. 1961); Shanafelt v. United States, 80 AFTR 2d 7668, 97-2
USTC par. 50,908 (D. Or. 1997); Johnston v. United States, 605 F.
Supp. 26 (D. Mont. 1984). Petitioner distinguishes refund
proceedings because they are equitable in nature. The Court of
Appeals has not placed special emphasis on the equitable nature
of refund proceedings when applying the duty of consistency
doctrine in refund cases.3 See Building Syndicate Co. v. United
3 Petitioner argues that the decision by the Court of
Appeals for the Ninth Circuit to apply the duty of consistency
doctrine in the tax refund case Building Syndicate Co. v. United
States, 292 F.2d 623 (9th Cir. 1961), was "based substantially on
the equitable nature of a refund proceeding." We disagree. The
Court did not explain that it was basing its decision on the
equitable nature of tax refund cases, rather, it simply cited
Stone v. White, 301 U.S. 532 (1937), in dicta, as a reference for
the equitable nature of tax refund suits. We note further that
Building Syndicate quoted with approval from Alamo Natl. Bank v.
Commissioner, 95 F.2d 622 (5th Cir. 1938), a deficiency
proceeding originating in the Board of Tax Appeals, wherein
equitable principles in the nature of estoppel were applied.
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