- 32 - 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 toPage: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 NextLast modified: November 10, 2007