- 23 - factual situation”. In the instant case, the inconsistency arose because of a mutual mistake in deciding how Mr. Posner’s will should be construed under Maryland law--a purely legal issue. See McIntyre v. Byrne, 141 A.2d 692, 695 (Md. 1958) (“The construction of a will is a matter of law for the court to determine”). Mr. Posner’s estate did not misrepresent the property or type of property that Mr. Posner had devised to decedent. Respondent has not alleged any facts to show that the estate has been inconsistent with respect to any factual positions or to suggest that the inconsistency in question arose from anything other than a purely legal error in the context of “a definite factual situation”. Crosley Corp. v. United States, supra at 380.14 Moreover, the duty of consistency “does not apply where all pertinent facts are known to both the Commissioner and the 14 In Estate of Letts v. Commissioner, 109 T.C. 290, 302-303 (1997), affd. without published opinion 212 F.3d 600 (11th Cir. 2000), we concluded that the inconsistency at issue involved a mixed question of fact and law as to whether certain property that the decedent’s husband devised to her in trust was “terminable interest” property; i.e., an interest passing to the decedent that would end on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur. See sec. 2056(b). In Estate of Letts, unlike the instant case, a copy of the predeceased spouse’s will was not attached to the earlier estate tax return, nor did the Commissioner audit the earlier estate tax return. Thus the Commissioner did not know or have reason to know the operative facts and circumstances underlying the position taken on that return. For these reasons, Estate of Letts is distinguishable from the instant case.Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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