The Brinson Company-Midwest, Inc., et al - Page 7

                                        - 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