BOCA Construction, Inc. - Page 6

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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 an unpublished Order of this Court.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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