Clarence Michael Cherveny - Page 5




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          because respondent would not agree to the $60 of litigation                 
          costs.  Ultimately, petitioner and respondent signed the                    
          stipulation of settled issues.                                              
               In deciding the merits of a motion for litigation costs, the           
          Court generally considers the reasonableness of the                         
          Commissioner’s position from the date the answer was filed.                 
          Huffman v. Commissioner, 978 F.2d 1139, 1148 (9th Cir. 1992),               
          affg. in part, revg. in part, and remanding T.C. Memo 1991-144.             
          No answer was required in this case which was tried under the               
          small tax case procedures.  Rule 175(b).  Accordingly,                      
          respondent's position for the purpose of the motion is the                  
          position maintained by respondent during the pendency of this               
          case.  There is nothing in the record that suggests that                    
          respondent's position changed from that taken in the notice of              
          deficiency, so these positions are, in effect, the same.  In the            
          notice of deficiency, respondent took the position that the                 
          $4,889 reported by petitioner's employer was taxable wages to               
          petitioner in 1996.                                                         
               Whether the Commissioner’s position was substantially                  
          justified turns on a finding of reasonableness, based upon all              
          the facts and circumstances, as well as the legal precedents                
          relating to the case.  Pierce v. Underwood, 487 U.S. 552, 565               
          (1988); Swanson v. Commissioner, 106 T.C. 76, 86 (1996).  A                 
          position is substantially justified if the position is "justified           






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