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one who has availed himself of its benefits.” Accord Arnett v.
Kennedy, 416 U.S. 134, 153 (1974) (“It is an elementary rule of
constitutional law that one may not ‘retain the benefits of an
Act while attacking the constitutionality of one of its important
conditions’.” (quoting United States v. San Francisco, 310 U.S.
16, 29 (1940))).
The duty of consistency prevents petitioners from claiming
on their income tax returns that Mr. Blonien was a partner and
then asserting, following the TEFRA partnership proceeding, that
the statute of limitations bars assessment of the deficiency
because Mr. Blonien never became a partner after all. As we
explained in Hollen v. Commissioner, T.C. Memo. 2000-99, affd. 25
Fed. Appx. 484 (8th Cir. 2002):
The “duty of consistency”, sometimes referred to
as quasi-estoppel, is an equitable doctrine that
Federal courts historically have applied in appropriate
cases to prevent unfair tax gamesmanship. The duty of
consistency doctrine “is based on the theory that the
taxpayer owes the Commissioner the duty to be
consistent in the tax treatment of items and will not
be permitted to benefit from the taxpayer’s own prior
error or omission.” It prevents a taxpayer from taking
one position on one tax return and a contrary position
on a subsequent return after the limitations period has
run for the earlier year. 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. [Citations omitted.]
If Mr. Blonien was not a partner in Finley Kumble, then
petitioners misrepresented the facts to respondent in their
earlier Federal income tax returns. Respondent relied on the
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