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Cir. 1981).13 With little elaboration, respondent contends on
brief that the inconsistency in question here is a “mixed
question of fact and law”, so that the duty of consistency
applies. We disagree.
In Crosley Corp. v. United States, 229 F.2d 376, 380 (6th
Cir. 1956), the Court of Appeals for the Sixth Circuit noted that
the duty of consistency “is probably applicable in cases where
the factual situation is such as to justify the taxpayer in
taking either of two possible positions” but generally does not
apply “when the error is one of law arising out of a definite
13 In Bennet v. Helvering, 137 F.2d 537, 539 (2d Cir. 1943),
Judge Learned Hand considered and rejected the application of a
duty of consistency based purely on a legal inconsistency, which
he referred to as “a kind of estoppel as to the law”:
That theory is, not that the taxpayer was here
“estopped” as to any fact by his earlier return, but
that if the earlier assessment were made upon one
theory of law, the same theory must be consistently
followed thereafter * * * . With deference * * * [this
theory] seems to us, not only to have all the vices of
an estoppel as to the facts, but not to have even the
excuse which that doctrine has: i.e., that in making
his return a taxpayer does represent that it contains
his complete gross income; something which the
Commissioner cannot know. * * *
See also Ross v. Commissioner, 169 F.2d 483, 493-494 (1st Cir.
1948). For a contrary view that the “fact versus law”
distinction should be eliminated from the duty of consistency
doctrine, see Johnson, “The Taxpayer’s Duty of Consistency,” 46
Tax L. Rev. 537, 552-553 (1991). Inasmuch as respondent has
conceded that the duty of consistency does not apply to a “mutual
mistake on the part of a taxpayer and the Service concerning a
pure question of law,” we need not delve deeper into these
matters here.
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