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Respondent has not alleged any facts to suggest that this audit
was insufficient in any regard other than in the failure to apply
the law correctly. Under these circumstances, respondent cannot
be viewed as justifiably relying on the legal representation on
the estate tax return of Mr. Posner’s estate.
The executor of Mr. Posner’s estate and the executor of
decedent’s estate, as well as respondent’s agents upon audit of
Mr. Posner’s estate’s estate tax return, all acted in accordance
with the mutual mistake of law that Mr. Posner’s will gave
decedent a general power of appointment. Indeed, when he filed
the estate tax return of decedent’s estate, decedent’s executor
included the marital trust property in decedent’s gross estate
and paid the resulting estate tax. He steadfastly maintained in
the State court litigation that decedent possessed a testamentary
power of appointment over the marital trust property. Only after
the court of special appeals rejected this position and the
Maryland Court of Appeals declined to hear the appeal did he file
the refund claim. Respondent has not carried his burden to show
that the duty of consistency should apply in these circumstances.
Accordingly, we hold that the marital trust property is not
includable in decedent’s gross estate.
IV. Accrued Interest on the Overpayment
The estate requests that we award it interest on its
overpayment of estate tax pursuant to sections 6611 and 6621.
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