Lee B. Arberg and Melissa A. Quinn - Page 32




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          and losses therein are properly attributable to her, and that               
          such transactions are capital in nature.  Accordingly, the first            
          element for the duty of consistency is satisfied.                           
               The second inquiry is whether respondent acquiesced in or              
          relied on the facts attested by petitioners’ reporting.  Caselaw            
          establishes that the necessary acquiescence exists where a                  
          taxpayer’s return is accepted as filed; examination of the return           
          is not required.  E.g., Estate of Letts v. Commissioner, supra at           
          300; LeFever v. Commissioner, supra at 543-544; Bentley Court II            
          Ltd. Pship. v. Commissioner, T.C. Memo. 2006-113.  Here,                    
          respondent accepted Ms. Quinn’s 1999 return reporting capital               
          gain as filed.  Mr. Arberg’s 1999 return was examined and changes           
          were made, but no adjustment to include gains from transactions             
          in the E Trade account was involved.  The resultant deficiency              
          was agreed to by Mr. Arberg and assessed by the IRS.  Hence, the            
          second element poses no barrier to application of the duty of               
          consistency.                                                                
               The third question probes whether the taxpayer is changing a           
          representation previously made after the time to assess                     
          additional tax for the earlier year has passed.  Petitioners, as            
          reflected in their joint return and revised return for 2000 and             
          in their arguments herein, seek to alter their 1999 reporting               
          position to contend that ownership of and/or proceeds of                    
          transactions in the E Trade account are attributable to                     







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