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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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