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any event, Bentley Court does not contend that respondent untimely
raised the affirmative defense. This matter, having been tried by
consent of the parties is therefore treated as if it had been
raised in the pleadings. Rule 41(b)(1); see also, e.g., Lilley v.
Commissioner, T.C. Memo. 1989-602, affd without published opinion
925 F.2d 417 (3d Cir. 1991).
The duty of consistency doctrine is intended to prevent a
taxpayer from taking a position in an earlier year and a contrary
position in a later year after the limitations period has run on
the first year. Lefever v. Commissioner, 103 T.C. 525, 541-542
(1994) (citing Herrington v. Commissioner, 854 F.2d 755 (5th Cir.
1988), affg. Glass v. Commissioner, 87 T.C. 1087 (1986)),
supplemented by T.C. Memo. 1995-321, affd. 100 F.3d 778 (10th Cir.
1996). A taxpayer gaining governmental benefits on the basis of a
representation or asserted position is thereafter estopped from
taking a contrary position in an effort to escape taxes. Id. at
542. A duty of consistency arises where:
“(1) the taxpayer has made a representation or
reported an item for tax purposes in one year,
(2) the Commissioner has acquiesced in or relied on
that fact for that year, and
(3) the taxpayer desires to change the
representation, previously made, in a later year after
the statute of limitations on assessments bars
adjustments for the initial year.” * * * [Id. at 543
(quoting Beltzer v. United States, 495 F.2d 211, 212
(8th Cir. 1974)).]
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