- 7 -
Petitioners bear the burden of proving that respondent's
position was not substantially justified. Rule 232(e); Estate of
Johnson v. Commissioner, 985 F.2d 1315, 1318 (5th Cir. 1993);
Bragg v. Commissioner, supra; Coastal Petroleum Refiners, Inc. v.
Commissioner, 94 T.C. 685, 688 (1990). Petitioners, however,
need not show bad faith to establish that respondent's position
was not substantially justified for purposes of a motion for
administrative and litigation costs under section 7430. Estate
of Perry v. Commissioner, 931 F.2d 1044, 1046 (5th Cir. 1991);
Powers v. Commissioner, 100 T.C. 457 (1993), affd. in part and
revd. in part 43 F.3d 172 (5th Cir. 1995).
Whether the position of the United States in this proceeding
was substantially justified depends on whether respondent's
position and actions were reasonable in light of the facts of the
case and the applicable legal precedents. Pierce v. Underwood,
487 U.S. 552 (1988); Bragg v. Commissioner, supra at 716; Coastal
Petroleum Refiners, Inc. v. Commissioner, supra at 688. The
reasonableness of respondent's position necessarily requires
considering what respondent knew at the time she took her
position and the events that occurred afterwards. Rutana v.
Commissioner, 88 T.C. 1329, 1334 (1987); Don Casey Co. v.
Commissioner, 87 T.C. 847, 862 (1986). Generally, respondent's
concession of all or part of a case is not by itself sufficient
to establish that respondent's position was unreasonable. Sokol
v. Commissioner, 92 T.C. 760, 767 (1989); Wasie v. Commissioner,
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011