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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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