Bentley Court II Limited Partnership, B.F. Bentley, Inc., Tax Matters Partner - Page 8

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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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