- 13 -
held that the Commissioner’s reliance on an “unsubstantiated and
unreliable” Form 1099 to assert a deficiency against the alleged
payee was unreasonable. Id. at 29.9 In the instant case, the
Form 1099-C, upon which respondent relied, was supported by the
FDIC’s internal records. Portillo is therefore distinguishable.
Petitioners also suggest that, because respondent conceded
the case without (as petitioners allege and respondent, in his
objection to the motion, appears to confirm) having uncovered any
new factual information that would cause respondent to reconsider
his position, such concession is indicative of the
unreasonableness of respondent’s position in his notice of
deficiency and answer. We acknowledge that there may be
circumstances in which the absence of new information would weigh
against the Commissioner in the context of a concession. See,
e.g., Lennox v. Commissioner, 998 F.2d 244, 248 (5th Cir.
1993)(rejecting the implication that the Commissioner had
obtained new information between the date of the notice of
deficiency and the date of the concession), revg. T.C. Memo.
1992-382. However, it is just as clear that the Commissioner’s
position may be substantially justified notwithstanding his
9 The Court of Appeals for the Fifth Circuit had previously
reversed the portion of a Memorandum Opinion of this Court that
upheld the Commissioner’s proposed deficiency attributable to the
income reported on the Form 1099. Portillo v. Commissioner, 932
F.2d 1128 (5th Cir. 1991), affg. in part and revg. in part T.C.
Memo. 1990-68.
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