Barbara Kahn-Langer - Page 7

                                                - 7 -                                                  
            revg. in part on other grounds and remanding T.C. Memo. 1991-                              
            144); Han v. Commissioner, T.C. Memo 1993-386.  Respondent filed                           
            her answer on November 30, 1994.  Thus, we will consider                                   
            respondent's position as of this date in determining whether to                            
            award petitioner litigation costs.  Respondent's position, namely                          
            that petitioner failed to recognize certain payments received                              
            from her former husband as alimony, did not change between                                 
            September 30 and November 30, 1994.                                                        
                  In determining whether respondent's position was                                     
            substantially justified on each of these dates, we will consider                           
            the basis of respondent's position and the manner in which                                 
            respondent maintained that position.  Wasie v. Commissioner, 86                            
            T.C. 962, 969 (1986).  Factors which may be considered include:                            
                  (1) whether the government used the costs and expenses                               
                  of litigation against its position to extract                                        
                  concessions from the taxpayer that were not justified                                
                  under the circumstances of the case, (2) whether the                                 
                  government pursued the litigation against the taxpayer                               
                  for purposes of harassment or embarrassment, or out of                               
                  political motivation, and (3) such other factors as the                              
                  Court finds relevant.  [Sher v. Commissioner, 89 T.C.                                
                  79, 85 (1987) (quoting H. Rept. 97-404, at 12 (1981)),                               
                  affd. 861 F.2d 131 (5th Cir. 1988).]                                                 
            A position is substantially justified if the position is                                   
            "justified to a degree that could satisfy a reasonable person".                            
            Pierce v. Underwood, 487 U.S. 552, 565 (1988).  Additionally, the                          
            position must have a reasonable basis both in law and in fact.                             
            Id.                                                                                        







Page:  Previous  1  2  3  4  5  6  7  8  9  10  Next

Last modified: May 25, 2011