Michael C. Hollen and Joan L. Hollen - Page 11




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                    (1) the taxpayer has made a representation or                     
               reported an item for tax purposes in one year,                         
                    (2) the Commissioner has acquiesced in or relied                  
               on that fact for that year, and                                        
                    (3) the taxpayer desires to change the                            
               representation, previously made, in a later year after                 
               the statute of limitations on assessments bars                         
               adjustments for the initial year.                                      
          Id. at 212; see also LeFever v. Commissioner, supra at 543                  
          (quoting Beltzer v. United States, supra).  Because the duty of             
          consistency is an affirmative defense, respondent bears the                 
          burden of proving that it applies.  See Rule 142(a).                        
               Throughout the life of the partnership, petitioner                     
          consistently represented to respondent that the ranch was                   
          partnership property.  Petitioner did so by causing the                     
          partnership to file tax returns claiming depreciation deductions            
          with respect to the ranch and by asserting the ranch was                    
          partnership property during audits of the partnership’s Federal             
          income tax returns.  Consistent with the partnership’s reporting            
          position, petitioners filed individual Federal income tax returns           
          for each of the taxable years 1982 through 1987 claiming                    
          petitioner’s distributive loss from the partnership.  The loss              
          was calculated, in part, by deducting depreciation on ranch                 
          buildings and other improvements.  When petitioners filed their             
          Federal income tax return for 1988, however, they changed their             
          representation with respect to the ranch, taking the position               






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