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the documents were produced and identified until after
respondent filed her response to Petitioner's Motion
For An Order To Show Cause Pursuant to Rule 91(f).
Respondent points out that respondent had objected to
petitioner's motion under Rule 91(f) to compel stipulation in
part because respondent had not seen many of the documents that
petitioner proposed to be stipulated. These facts could not
provide a basis in fact for respondent's position when the notice
of deficiency was issued or the answer was filed. We conclude
that the documents that petitioner sought to include in a
proposed stipulation do not show that trial was needed or
otherwise substantially justify respondent's position.
f. Whether Petitioner Must Show That Respondent Had
Neither a Basis In Fact Nor a Basis in Law
Respondent contends that to establish that the position of
the United States was not substantially justified, petitioner
must show that legal precedent does not substantially support
respondent's position given the facts reasonably available to
respondent. Respondent contends that petitioner has failed to
do this. We disagree. As discussed above, facts about
petitioner's need to accumulate earnings were reasonably
available to respondent if respondent had investigated the issue.
Respondent failed to make such an investigation. In the
circumstances, we conclude that respondent had insufficient
knowledge of the facts of the case to render respondent's
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