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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. United
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