BOCA Construction, Inc. - Page 9

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            determination in the notice of deficiency; it is whether                                    
            respondent had a basis in fact for that position.  We may                                   
            consider evidence not offered at trial in deciding a motion                                 
            for 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).                                         
                  Respondent relied on RMA and Occupational Outlook Handbook                            
            data to determine petitioner's reasonable compensation for                                  
            officers.  This case is different from Powers v. Commissioner,                              
            supra at 472, in which the Commissioner determined a deficiency                             
            without considering any information about the case.                                         
                  Respondent did not call any expert witnesses.  However,                               
            even without an expert at trial, we believe respondent's position                           
            had a basis in fact.                                                                        
                  c.    Respondent's Basis in Law                                                       
                  The parties generally agreed about the factors courts have                            
            used to decide whether compensation is reasonable, but disagreed                            
            on how the factors applied to this case.  Petitioner does not                               
            contend that respondent did not have a reasonable basis in law.                             
            We conclude respondent had a reasonable basis in law.                                       










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