John W. Banks, III - Page 25




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         omission.”  Cluck v. Commissioner, supra at 331.  It prevents a              
         taxpayer from taking one position on one tax return and a                    
         contrary position on another return for which the limitation                 
         period has run.  See id.  If the duty of consistency applies, a              
         taxpayer who is gaining Federal tax benefits on the basis of a               
         representation is estopped from taking a contrary return position            
         in order to avoid taxes.  See id.                                            
              Because petitioner’s 1993 taxable year is a closed year, and            
         because all of the elements of the doctrine are satisfied, we                
         hold that petitioner is bound by the duty of consistency and                 
         prohibited from arguing that the alimony was deductible in 1990,             
         rather than in 1993 as he originally reported.                               
              5.  Addition to Tax                                                     
              Respondent amended his answer to seek an addition to tax for            
         petitioner's failure to file timely his 1988 Federal income tax              
         return.  Respondent has the burden of proof on this issue.  See              
         Rule 142(a).  Section 6651(a)(1) imposes an addition to tax equal            
         to 5 percent per month of the underpayment up to a maximum of 25             
         percent for untimely filed returns.  This addition to tax is not             
         imposed if the failure to file timely was due to reasonable cause            
         and not due to willful neglect.  Petitioner's 1988 Federal income            
         tax return was due on April 15, 1989.  Petitioner signed his 1988            
         Federal income tax return on March 7, 1990, and did not file it              
         until September 27, 1990.  The record is void of any explicit                






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