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positions; i.e., contending now that it failed to qualify or that
qualified basis was zero for 1990, 1991, and 1992, when Bentley
Court had previously claimed the credit based on the return-
reporting position that a qualified basis existed for those same
tax years.
The duty of consistency is an affirmative defense. Cluck v.
Commissioner, 105 T.C. 324, 331 n.11 (1995); Janis v.
Commissioner, T.C. Memo. 2004-117; Bitker v. Commissioner, T.C.
Memo. 2003-209. If respondent interposes an affirmative defense,
he bears the burden of proof with respect to that matter. Rule
142(a). Normally, matters of avoidance, such as affirmative
defenses and collateral estoppel must be set forth in the
pleadings. Rule 39.
Bentley Court’s pleadings (petition and amended petition)
contained allegations that it was entitled to the low-income
housing credits for 1993, 1994, and 1995. After the pleadings
were filed and the case was in issue, Bentley Court, during
settlement negotiations, conceded that it was not entitled to the
low-income housing credits claimed for the 1993, 1994, and 1995
years. Subsequently and shortly before trial, in its pretrial
memorandum supplied to the Court and respondent, Bentley Court,
for the first time, contended that it had never been entitled to
low-income housing credits for the closed tax years 1990, 1991,
and 1992 and hence, the recapture provisions did not apply. In
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