Charles B. Owens and Sally L. Owens - Page 16




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          (Commissioner’s position regarding “tax home” issue was                     
          substantially justified, but his assertion of accuracy-related              
          penalty was not).  Suffice it to say that a close case is often             
          indicative of reasonableness and good faith on both sides of the            
          dispute.  We conclude that respondent’s assertion that                      
          petitioners’ position on the discharge of indebtedness issue was            
          not only incorrect, but unreasonable as well, was itself                    
          unreasonable.11                                                             
          III.  Amount of Recoverable Costs                                           
               A.  Eligible Costs                                                     
               Petitioners seek costs in the amount of $10,978.74.                    
          However, petitioners’ submission of costs includes 18.25 hours of           
          services performed by C.P.A. Nancy J. Critz prior to January 19,            
          1999.  The cost of those services is not recoverable under                  




               11  Sec. 1.6662-3(b)(1)(i), Income Tax Regs., provides that            
          negligence is “strongly indicated” where a taxpayer omits income            
          reported on an information return (such as a Form 1099).  While,            
          ordinarily, that might be the case (which in turn would tend to             
          support a finding that the Commissioner acted reasonably in                 
          asserting the negligence penalty under such circumstances), such            
          principle presupposes that, unlike the instant case, the                    
          correctness of the information return in question is not in                 
          dispute.  Cf. Portillo v. Commissioner, 988 F.2d 27 (5th Cir.               
          1993)(Commissioner’s reliance on uncorroborated Form 1099 not               
          reasonable under the circumstances; no separate discussion of               
          negligence penalty in this context), revg. T.C. Memo. 1992-99;              
          Eifert v. Commissioner, T.C. Memo. 1997-214 (Commissioner’s                 
          reliance on FDIC’s erroneous Form 1099-G, reporting discharge of            
          indebtedness income, not reasonable under the circumstances; no             
          negligence penalty asserted).                                               





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