Daniel R. Allemeier, Jr. - Page 5

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          treated as a prevailing party because respondent’s position in              
          the court proceeding was substantially justified.                           
          Substantial Justification                                                   
               The Commissioner’s position is substantially justified if,             
          based on all the facts and circumstances and relevant legal                 
          precedents, the Commissioner acted reasonably.  See Pierce v.               
          Underwood, 487 U.S. 552, 565 (1988); Sher v. Commissioner, 89               
          T.C. 79, 84 (1987), affd. 861 F.2d 131 (5th Cir. 1988).  The                
          Commissioner’s position may be incorrect yet substantially                  
          justified if the Commissioner’s position had a reasonable basis             
          in law and fact.  See Pierce v. Underwood, supra at 566 n.2;                
          Huffman v. Commissioner, 978 F.2d 1139, 1147 n.8 (9th Cir. 1992),           
          affg. in part, revg. in part and remanding T.C. Memo. 1991-144;             
          sec. 301.7430-5(c)(1), Proced. & Admin. Regs.  A position has a             
          reasonable basis in fact if there is relevant evidence that a               
          reasonable mind might accept as adequate to support a conclusion.           
          Pierce v. Underwood, supra at 564-565; Huffman v. Commissioner,             
          supra.                                                                      
               That respondent loses on an issue is not determinative of              
          the reasonableness of respondent’s position.  See Wasie v.                  
          Commissioner, 86 T.C. 962, 968-969 (1986); DeVenney v.                      
          Commissioner, 85 T.C. 927 (1985).  It remains a factor, however,            
          to be considered.  Estate of Perry v. Commissioner, 931 F.2d                
          1044, 1046 (5th Cir. 1991); Powers v. Commissioner, 100 T.C. 457,           






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