Estate of Hilda Ashman, Deceased, Phillip Ashman, Personal Representative - Page 7

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          States, supra.  Moreover, we apply equitable principles in cases            
          within our jurisdiction.  See Woods v. Commissioner, 92 T.C. 776            
          (1989).                                                                     
               Petitioner also contends that the Court of Appeals for the             
          Ninth Circuit criticized the duty of consistency in Unvert v.               
          Commissioner, 656 F.2d 483, 486 n.2 (9th Cir. 1981), affg. 72               
          T.C. 807 (1979), as requiring case-by-case adjudication.  In                
          Unvert, the taxpayers recovered an amount that they had                     
          previously deducted.  The deduction was improper when claimed.              
          The Court of Appeals rejected the erroneous deduction exception             
          to the tax benefit rule and required the taxpayer to report the             
          amount recovered as income to offset the prior improper                     
          deduction.  In that case, the Tax Court had relied on the duty of           
          consistency to hold the taxpayer to the prior, incorrect                    
          representation and required the taxpayer to report the income.              
          Unvert does not stand for a rejection of the duty of consistency            
          by the Ninth Circuit as petitioner argues.  Rather, Unvert                  
          declined to recognize an exception to the tax benefit rule,                 
          evidencing a liberal approach by the Ninth Circuit to equitable             
          principles in tax deficiency proceedings.                                   
               In Wentworth v. Commissioner, 244 F.2d 874 (9th Cir. 1957),            
          affg. 25 T.C. 1210 (1956), the Court of Appeals for the Ninth               
          Circuit applied certain equitable principles similar in operation           
          and effect to the duty of consistency doctrine in a tax                     
          deficiency case.  The taxpayer had received a corporate                     
          distribution in a prior year and did not report the distribution            


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