Robert C. McKee and Valery W. McKee - Page 7

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               For purposes of deciding a motion for reasonable litigation            
          costs, section 7430(c)(7)(A) defines the Commissioner’s                     
          “position” as the position taken in the court proceeding.  In the           
          present case, respondent took a position when respondent filed an           
          answer to petitioners’ petition.  See Huffman v. Commissioner,              
          978 F.2d 1139, 1149 (9th Cir. 1992), affg. in part, revg. in part           
          and remanding T.C. Memo. 1991-144; Maggie Mgmt. Co. v.                      
          Commissioner, 108 T.C. 430, 442 (1997).                                     
               The Commissioner’s position is substantially justified if it           
          has a reasonable basis in both fact and law and is justified to a           
          degree that could satisfy a reasonable person.  Huffman v.                  
          Commissioner, supra at 1147 n.8 (citing Pierce v. Underwood, 487            
          U.S. 552, 565 (1988)); Rosario v. Commissioner, T.C. Memo. 2002-            
          247; sec. 301.7430-5(c)(1), Proced. & Admin. Regs.  In deciding             
          whether the Commissioner’s position was substantially justified,            
          a significant factor is whether, on or before the date the                  
          Commissioner assumed the position, the taxpayer provided “all               
          relevant information under the taxpayer’s control and relevant              
          legal arguments supporting the taxpayer’s position to the                   
          appropriate Internal Revenue Service personnel.”2  Sec. 301.7430-           


               2“Appropriate Internal Revenue Service personnel” are those            
          employees who are reviewing the taxpayer’s information or                   
          arguments, or employees who, in the normal course of procedure              
          and administration, would transfer the information or arguments             
          to the reviewing employees.  Sec. 301.7430-5(c)(1), Proced. &               
          Admin. Regs.                                                                




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