- 26 - taxpayer may not successfully assert the contrary. Herrington v. Commissioner, supra at 758. The three elements of the duty of consistency refer to conflicting representations that are made by a taxpayer. The duty of consistency, however, can also bind a beneficiary of an estate to a representation made on an estate tax return if the beneficiary was a fiduciary of the estate. Beltzer v. United States, supra; see also Hess v. United States, supra; Estate of Letts v. Commissioner, supra at 298; Cluck v. Commissioner, supra at 333; LeFever v. Commissioner, supra at 543-544; Griffith v. United States, 27 AFTR 2d 71-754, 71-1 USTC par. 9280 (N.D. Tex. 1971); McMillan v. United States, 14 AFTR 2d 5704, at 5706-5707, 64-2 USTC par. 9720, at 93,839 (S.D. W. Va. 1964). Whether there is sufficient identity of interests between the parties to apply the duty of consistency in such a situation depends on the facts and circumstances of each case. Cluck v. Commissioner, supra at 335. In this case, there is a sufficiently close relationship between petitioners and Sidney’s estate because Conrad and Carroll were co-executors and beneficiaries of Sidney’s estate as well as cotrustees and beneficiaries of the trust to which the gallery had been transferred prior to Sidney’s death. See, e.g., Hess v. United States, supra at 464; Estate of Letts v. Commissioner, supra at 298-299; LeFever v. Commissioner, supra at 543-544; Griffith v. United States, supra; McMillan v. UnitedPage: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
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