Nellwyn A. Buck - Page 10

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               In order to qualify as the "prevailing party", a taxpayer              
          must establish that: (1) The position of the United States in the           
          proceeding was not substantially justified; (2) the taxpayer has            
          substantially prevailed with respect to the amount in controversy           
          or the most significant issue or set of issues presented; and (3)           
          the taxpayer satisfies the applicable net worth requirements.               
          Sec. 7430(c)(4)(A).  We understand respondent to concede that               
          petitioner has satisfied the applicable net worth requirements              
          and that petitioner has not unreasonably protracted the judicial            
          proceeding.                                                                 
               Finally, if a taxpayer qualifies as the prevailing party,              
          only administrative and litigation costs that are reasonable may            
          be awarded.  Sec. 7430(a), (c)(1) and (2).                                  
               We begin with whether respondent's position was                        
          substantially justified.  Petitioner bears the burden of proving            
          that respondent's position was not substantially justified.  Rule           
          232(e); Dixson Corp. v. Commissioner, 94 T.C. 708, 714-715                  
          (1990); Ganter v. Commissioner, 92 T.C. 192, 197 (1989), affd.              
          905 F.2d 241 (8th Cir. 1990).                                               
               As originally enacted, section 7430 required that a taxpayer           
          establish that the position of the United States was                        
          unreasonable.  In 1986, Congress adopted the standard applicable            
          to the Equal Access to Justice Act (EAJA), 28 U.S.C. sec. 2412              
          (1988), by changing "unreasonable" to "not substantially                    
          justified".  Tax Reform Act of 1986, Pub. L. 99-514, sec. 1551,             




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