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the first year. Id. at 541-542. A taxpayer gaining governmental
benefits on the basis of a representation or an asserted position
is thereafter estopped from taking a contrary position in an
effort to avoid taxes. Id. at 542. Respondent has the burden of
proof on this issue because the duty of consistency is an
affirmative defense. Rule 142(a)(1); see Cluck v. Commissioner,
supra at 331 n.11.
The taxpayer’s duty of consistency applies if: (1) The
taxpayer made a representation of fact or reported an item for
tax purposes in one tax year; (2) the Commissioner acquiesced in
or relied on that fact for that year; and (3) the taxpayer
desires to change the representation previously made in a later
tax year after the earlier year has been closed by the statute of
limitations. LeFever v. Commissioner, supra at 543; see also
Kielmar v. Commissioner, 884 F.2d 959, 965 (7th Cir. 1989);
Herrington v. Commissioner, 854 F.2d 755, 758 (5th Cir. 1988),
affg. Glass v. Commissioner, 87 T.C. 1087 (1986); Shook v. United
States, 713 F.2d 662, 667 (11th Cir. 1983); Hess v. United
States, 210 Ct. Cl. 483, 537 F.2d 457, 463 (1976); Beltzer v.
United States, 495 F.2d 211, 212 (8th Cir. 1974); Estate of Letts
v. Commissioner, supra at 297; Cluck v. Commissioner, supra at
332. When these requirements are met, respondent may act as if
the previous representation is true, even if it is not, and the
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