James E. Blasius and Mary Jo Blasius, et al. - Page 29

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          had been previously rejected by three U.S. Courts of Appeals, by            
          this Court (upon reconsideration of a decision that had been                
          reversed on appeal), and by “several” U.S. District Courts.  The            
          Court of Appeals stated that it had been unable to “find a single           
          published opinion supporting the Commissioner’s position.”                  
          Allbritton v. Commissioner, id. at 184.  In Estate of Perry v.              
          Commissioner, supra at 1046, the Commissioner had lost “identical           
          appeals in two other circuits”, and the Court of Appeals for the            
          Fifth Circuit rejected the Commissioner’s argument that a                   
          contrary decision by that same court justified his litigating               
          position merely because that decision had not been specifically             
          overruled.  The Court of Appeals noted that, in the context of an           
          amendment to the Code, “the clear and unequivocal language of               
          which unmistakably overrules” its earlier decision, “the absence            
          of a new decision * * * does not equate with unsettled law or               
          first impression”.  Id.  Unlike the circumstances present in                
          Allbritton and Estate of Perry, respondent in the consolidated              
          cases can point to numerous cases that reasonably support his               
          litigating position.                                                        
               We conclude that the decisions of the Courts of Appeals in             
          PNC Bancorp, Inc. v. Commissioner, supra, and Wells Fargo & Co.             
          and Subs. v. Commissioner, supra, did not preclude respondent’s             
          reliance on inconsistent Supreme Court, Courts of Appeals, Court            
          of Claims, and Tax Court authority (buttressed in May 2001, by              






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