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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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