Estate of Hilda Ashman, Deceased, Phillip Ashman, Personal Representative - Page 13

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          challenge decedent's representations regarding the pension                  
          distribution, and allowed the period of limitations for 1990 to             
          expire.                                                                     
          (3)  Decedent’s Change of Position or Representation for 1993               
               With respect to the third element regarding a change in the            
          taxpayer's prior representation, petitioner argues that decedent            
          never made a representation of fact from which an inconsistency             
          may arise.  Decedent represented that the 1990 pension                      
          distribution was timely rolled over on her 1990 return.  In this            
          case, petitioner claims that $100,502.21 of the pension                     
          distribution was not timely rolled over.  These positions are               
          inconsistent, and petitioner's position in this case constitutes            
          a change in a prior representation.                                         
               Petitioner also argues that there was no detriment to the              
          Commissioner from the alleged inconsistent reporting of the 1990            
          pension distribution.  In this regard, petitioner argues that               
          respondent has failed to show that decedent received a tax                  
          windfall from the prior representation that a timely rollover               
          occurred.  Petitioner suggests that the portion of the 1990                 
          pension distribution deposited with GNA may have been nontaxable            
          for some reason other than tax-deferred rollover treatment.  For            
          example, petitioner contends that the pension distribution may              
          have consisted of after-tax employee contributions that are not             
          taxable upon distribution.  Petitioner's contention on this point           
          is nothing more than supposition.  Petitioner did not offer any             



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