- 46 - business expenses, whether BAC’s deductions were substantiated, and whether the claimed losses were passive losses under section 469. If we were to accept petitioner’s concession and refuse to apply the duty of consistency, respondent would be deprived of the opportunity to evaluate BAC’s correct tax status or to determine the proper tax effect of BAC’s activities for the years at issue. This is so, at least in part, because, if BAC were a C corporation as petitioner contends, the limitations period for assessing income tax deficiencies at the corporate level would have expired. The record reveals that respondent relied on petitioner’s representations regarding BAC’s S status to his detriment, and we so find. Finally, we reject petitioner’s argument that, because he was not aware of any problem with BAC’s S corporation election prior to 1998, he did not have personal knowledge of BAC’s failed S corporation election until after the audit was completed and the period of limitations had run for the years at issue. Although petitioner’s argument implies to the contrary, personal knowledge is not an element of the duty of consistency. Kielmar v. Commissioner, 884 F.2d 959 (7th Cir. 1989). The duty of consistency may apply to a taxpayer who innocently misrepresents a fact in a time-barred year and to one who misleads intentionally. Beltzer v. United States, 495 F.2d 211, 212 (8th Cir. 1974); Unvert v. Commissioner, 72 T.C. 807, 816 (1979), affd. 656 F.2d 483 (9th Cir. 1981).Page: Previous 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 Next
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