Bentley Court II Limited Partnership, B.F. Bentley, Inc., Tax Matters Partner - Page 12

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          time, the indictment and criminal proceeding commenced after the            
          normal 3-year period for assessment of the tax for 1992 had                 
          expired.  Moreover, we note that respondent’s examination did not           
          extend back prior to Bentley Court’s 1993 tax year.  Accordingly,           
          it appears that respondent (during the examination) did not gain            
          access to facts that would have put him on notice that the credit           
          claimed for 1992 was erroneous.  Cf.  S. Pac. Trans. Corp. v.               
          Commissioner, 75 T.C. 497, 560 (1980), supplemented by 82 T.C. 122          
          (1984); Davoli v. Commissioner, T.C. Memo. 1994-326.  Respondent            
          acquiesced to and relied upon Bentley Court’s representations by            
          “accepting” the returns as filed, irrespective of the indictment            
          and conviction of Lewis, Bentley Court’s principal officer.                 
               Bentley Court’s situation matches the third prong by its               
          change of position with respect to the closed years.  Bentley               
          Court first represented that it qualified for low-income housing            
          credits for the years 1990 through 1992, and had the above-                 
          described yearend qualified bases.  Now that the assessment                 
          periods for those years have expired, Bentley Court claims that             
          the previously reported yearend qualified bases were actually               


               5(...continued)                                                        
               in other relationships.  Whether it be called estoppel,                
               or a duty of consistency, or the fixing of a fact by                   
               agreement, the fact fixed for one year ought to remain                 
               fixed in all its consequences, unless a more just                      
               general settlement is proposed and can be effected. * *                
               * [Alamo Natl. Bank v. Commissioner, 95 F.2d 622, 623                  
               (5th Cir. 1938), affg. 36 B.T.A. 402 (1937).]                          





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