- 30 - 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 taxpayerPage: Previous 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 NextLast modified: November 10, 2007