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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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