- 2 -
substantially justified. We conclude that petitioner has not
made this showing. Thus, petitioner's motion will be denied.
The parties have submitted affidavits and memoranda
supporting their positions. We decide the motion based on the
memoranda, affidavits, and exhibits attached to the affidavits.1
The parties do not dispute the facts in the affidavits or the
authenticity of the exhibits attached to the affidavits. There
are no significant conflicts of fact presented by the affidavits.
Neither party requested a hearing. We conclude that a hearing is
not necessary to decide this motion. Rule 232(a)(3).
Section references are to the Internal Revenue Code in
effect for the years in issue. Rule references are to the Tax
Court Rules of Practice and Procedure.
Background
1. Petitioner and the Underlying Tax Case
1 By motion, petitioner asked us not to consider affidavits
and exhibits attached to respondent's memorandum. The affidavits
and exhibits generally addressed whether respondent's position
had the requisite basis in fact. We denied petitioner's motion
because our Rules allow parties to submit affidavits in
connection with a motion for an award of administrative and
litigation costs. Rules 231, 232; see Rule 34(b) (taxpayer may
not claim litigation costs in petition); Rule 70(a)(2) (no
discovery relevant to litigation costs without leave of Court
before hearing set on motion for litigation costs). However, as
we stated in denying petitioner's motion, neither party requested
a hearing or suggested that there is any factual dispute relating
to the affidavits or exhibits submitted by the parties. We also
stated that we would consider the affidavits and exhibits only to
decide petitioner's motion for administrative and litigation
costs.
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