Estate of Rose B. Posner, Deceased, David B. Posner, Personal Representative - Page 24

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          taxpayer”, especially if “the crucial facts are known to both               
          parties and the erroneous deductions are due to a mutual mistake            
          of law.”  S. Pac. Transp. Co. v. Commissioner, supra at 560; cf.            
          Interlochen Co. v. Commissioner, 232 F.2d 873 (4th Cir. 1956),              
          affg. 24 T.C. 1000 (1955); Hull v. Commissioner, 87 F.2d 260, 262           
          (4th Cir. 1937) (stating that “a party either knowing the facts,            
          or in a position to know them, cannot claim the benefit of                  
          estoppel”), revg. 33 B.T.A. 178 (1935).  In the instant case,               
          respondent had reason to know all the relevant facts.  When Mr.             
          Posner’s estate filed its estate tax return, it adequately                  
          disclosed the relevant facts and documents, attaching a copy of             
          Mr. Posner’s will.15  Respondent audited the estate tax return of           
          Mr. Posner’s estate and allowed the marital deduction.16                    


               15 Respondent claims that when Mr. Posner’s estate filed the           
          estate tax return, it made a “factual representation” that                  
          decedent possessed a general power of appointment over the                  
          marital trust property.  We are not convinced that this is a                
          factual representation; rather, it is a legal conclusion.  In               
          attaching Mr. Posner’s will to the estate tax return, Mr.                   
          Posner’s estate disclosed all underlying facts necessary to reach           
          this conclusion or an alternative conclusion.  Cf. Estate of                
          Ashman v. Commissioner, T.C. Memo. 1998-145 (“The Commissioner              
          may rely on representations in a return signed under penalties of           
          perjury absent sufficient facts that provide actual or                      
          constructive knowledge to the contrary.”  (Emphasis added.)),               
          affd. 231 F.3d 541 (9th Cir. 2000).                                         
               16 Cf. Estate of Letts v. Commissioner, supra at 300 (“The             
          Commissioner acquiesces in or relies on a fact if a taxpayer                
          files a return that contains an inadequately disclosed item of              
          which the Commissioner was not otherwise aware, the Commissioner            
          accepts that return, and the time to assess tax expires without             
          an audit of that return.”  (Emphasis added.)).                              





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