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as income. In a subsequent year, the taxpayer received a second
corporate distribution and argued that it was a nontaxable
repayment of a loan made by the taxpayer to the corporation. The
Court of Appeals held that the failure to report the first
distribution as income was a representation that the distribution
was a loan repayment. The court then held that the taxpayer
could not argue that the second distribution was for repayment of
the loan and had to report the distribution as a taxable dividend
from the corporation. Although contemporaneous duty of
consistency terminology was not employed by the court in
Wentworth v. Commissioner, supra, the opinion rests on the
principles of that doctrine. See Estate of Letts v.
Commissioner, 109 T.C. 290 (1997).
Based on our review, the Court of Appeals for the Ninth
Circuit does recognize the duty of consistency as a viable
judicial doctrine and has not limited its use to tax refund
cases. Furthermore, we have considered and applied the duty of
consistency doctrine in cases appealable to the Court of Appeals
for the Ninth Circuit. See Koppen v. Commissioner, T.C. Memo.
1995-316; Erickson v. Commissioner, T.C. Memo. 1991-97; Coldiron
v. Commissioner, T.C. Memo. 1987-569. In the absence of a clear
mandate from the Court of Appeals for the Ninth Circuit, we are
not compelled to hold the duty of consistency doctrine
inapplicable in tax deficiency cases appealable to that Circuit.
Golsen v. Commissioner, 54 T.C. 742, 756-757 (1970), affd. 445
F.2d 985 (10th Cir. 1971).
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