Lee B. Arberg and Melissa A. Quinn - Page 30




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          LeFever v. Commissioner, supra at 541; Janis v. Commissioner,               
          supra.                                                                      
               This duty operates to preclude the taxpayer from taking a              
          position in an earlier year and a contrary position in a later              
          year, after expiration of the statute of limitations on the                 
          earlier year.  E.g., Herrington v. Commissioner, supra at 757;              
          Shook v. United States, supra at 667; Beltzer v. United States,             
          supra at 212; Estate of Letts v. Commissioner, supra at 296;                
          Cluck v. Commissioner, supra at 331; LeFever v. Commissioner,               
          supra at 541-542; Janis v. Commissioner, supra.  In practice, the           
          doctrine “prevents a taxpayer from claiming that he or she should           
          have paid more tax before and so avoiding the present tax.”                 
          Estate of Letts v. Commissioner, supra at 296.  An exception                
          exists in that the doctrine is not applicable to pure questions             
          of law, as opposed to questions of fact and mixed questions of              
          fact and law.  E.g., Herrington v. Commissioner, supra at 758;              
          Estate of Letts v. Commissioner, supra at 302.                              
               Both this and other courts, including the Court of Appeals             
          for the Eleventh Circuit, to which appeal in the instant case               
          would normally lie, identify three elements as conditions                   
          precedent to application of the duty of consistency:  (1) The               
          taxpayer has made a representation of fact 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               







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