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a. Background
The Equal Access to Justice Act's substantially justified
standard requires that the Government's position be justified
to a degree that would satisfy a reasonable person. Pierce v.
Underwood, 487 U.S. 552, 565 (1988). That standard applies to
motions for litigation costs under section 7430. Comer Family
Equity Pure Trust v. Commissioner, 958 F.2d 136, 139-140 (6th
Cir. 1992), affg. T.C. Memo. 1990-316; Powers v. Commissioner,
100 T.C. 457, 471 (1993), affd. on this issue and revd. in part
and remanded on other issues 43 F.3d 172 (5th Cir. 1995),
remanded 51 F.3d 34 (5th Cir. 1995). To be substantially
justified, the Commissioner's position must have a reasonable
basis in both law and fact. Pierce v. Underwood, supra; Hanover
Bldg. Matls., Inc. v. Guiffrida, 748 F.2d 1011, 1015 (5th Cir.
1984); Powers v. Commissioner, supra at 473. For a position to
be substantially justified, there must be "substantial evidence"
to support it. Pierce v. Underwood, supra at 564-565; Powers v.
Commissioner, supra at 473.
The fact that the Commissioner eventually loses or concedes
the case does not in itself establish that a position is
unreasonable. Wilfong v. United States, 991 F.2d 359, 364 (7th
Cir. 1993); Hanson v. Commissioner, 975 F.2d 1150, 1153 (5th Cir.
1992), revg. an unpublished Order of this Court. However, it is
a factor to be considered. Heasley v. Commissioner, 967 F.2d
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