- 10 - 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 thePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
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