Gilbert Vasquez - Page 26

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          not believe petitioner’s declaration that in May 2003 petitioner            
          sent appropriate documentation to respondent.                               
               Accordingly, respondent concludes, when respondent took a              
          position in the proceeding respondent’s position was                        
          substantially justified based on what respondent knew at that               
          time.                                                                       
               In his opening legal memorandum petitioner states as                   
          follows:                                                                    
          B.        The position advanced by the Respondent was                       
                    substantially unjustified by the facts that                       
                    five children were dependants of Petitioner.                      
                    To deny the two EIC Deductions when five                          
                    children were involved Petitioner believes                        
                    was both unjustified, and based on red lining                     
                    the area in which Petitioner lives.                               
                    1.   Respondent, Petitioner contends, was on                      
                         notice of the error when Petitioner called                   
                         Respondent’s service center on more than                     
                         one occasion.                                                
                    2.   Respondent, in documents already in front                    
                         of this Court, indicated a recommendation                    
                         for qualification of EIC as to Petitioner,                   
                         as of 11-19-03.                                              
                    3.   Petitioner also submitted an affidavit                       
                         claiming documents were supplied to Fresno                   
                         service center.                                              
                    4.   Only recently has Petitioner discovered an                   
                         audit, as to Fresno showing 75% of                           
                         reviewed cases of disallowed EIC credits                     
                         had documents in them supporting EIC                         
                         allowance.  This same report< Exhibit P22,                   
                         showed Fresno service center as having the                   
                         highest error rate, with over 54% error                      
                         rate, compared to other service centers                      
                         processing EIC.                                              
                    5.   Petitioner has obtained a document,                          
                         supplied by Respondent, showing the word                     
                         Document on it, although mis-spelled, at                     
                         or near the time Petitioner claims                           





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