BOCA Construction, Inc. - Page 2

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            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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