Estate of Rose B. Posner, Deceased, David B. Posner, Personal Representative - Page 23

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          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.                                                      





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