Estate of Hilda Ashman, Deceased, Phillip Ashman, Personal Representative - Page 10

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          supra, does not preclude our use of the principles of the duty of           
          consistency doctrine.  We now consider whether the required                 
          elements of the duty of consistency are present in this case.               
          (1)  Decedent’s Representation for 1990                                     
               With respect to the first element, petitioner contends that            
          decedent did not make a representation of fact on her 1990                  
          return.  Rather, petitioner argues that decedent misinterpreted             
          the law as to whether the GNA deposit qualified for rollover                
          treatment and misrepresented the legal consequences of her                  
          actions.  Petitioner contends that whether the pension                      
          distribution qualified for rollover treatment is a question of              
          law to which the duty of consistency does not apply.  The duty of           
          consistency applies if the inconsistency involves a question of             
          fact or a mixed question of fact and law; it does not apply to a            
          mutual mistake on the part of a taxpayer and the Internal Revenue           
          Service concerning a pure question of law.  LeFever v.                      
          Commissioner, 100 F.3d at 788; Herrington v. Commissioner, supra.           
          The question of whether a timely rollover of a pension                      
          distribution was attempted or completed in this case is either a            
          question of fact or a mixed question of fact and law to which the           
          duty of consistency would apply.  Before a mutual mistake of law            
          can occur, both parties must know the facts, see Unvert v.                  
          Commissioner, 72 T.C. 807, 816 (1979). We find that respondent              
          knew or was put on notice, before the expiration of the                     
          assessment period for decedent’s 1990 income tax, that the                  



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