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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. Id. at 297; LeFever v. Commissioner, 103 T.C. 525,
543 (1994), affd. 100 F.3d 778 (10th Cir. 1996).
Spouses, as well as their estates, may have sufficient
identity of interests so that one may be estopped under the duty
of consistency by a prior representation of the other. Estate of
Letts v. Commissioner, supra at 298; Cluck v. Commissioner, 105
T.C. 324, 333-336 (1995). Respondent contends that Mr. Posner’s
estate and decedent’s estate have sufficient identity of
interests that the duty of consistency is applicable. For
purposes of this discussion, we assume, without deciding, that
there was privity of interest between Mr. Posner’s estate and
decedent’s estate.
On brief, respondent acknowledges that the duty of
consistency applies “if the inconsistency is a question of fact
or a mixed question of fact and law. It does not apply to mutual
mistake on the part of a taxpayer and the Service concerning a
pure question of law.” See LeFever v. Commissioner, 100 F.3d at
788; Herrington v. Commissioner, 854 F.2d 755, 758 (5th Cir.
1988), affg. Glass v. Commissioner, 87 T.C. 1087 (1986); S. Pac.
Transp. Co. v. Commissioner, 75 T.C. 497, 560 (1980); Unvert v.
Commissioner, 72 T.C. 807, 816 (1979), affd. 656 F.2d 483 (9th
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