Nellwyn A. Buck - Page 11

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          100 Stat. 2752; see H. Conf. Rept. 99-841, at II-801 (1986),                
          1986-3 C.B. (Vol. 4) 1, 801.  The purpose of the amendment was to           
          conform section 7430 more closely to EAJA.  H. Rept. 99-841,                
          supra at II-801, 1986-3 C.B. (Vol. 4) 801.  We have consistently            
          held that the "substantially justified" standard is not a                   
          departure from the "reasonableness" standard.  E.g., Sokol v.               
          Commissioner, 92 T.C. 760, 763 n.7 (1989); Sher v. Commissioner,            
          89 T.C. 79, 84 (1987), 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) (construing similar           
          language in EAJA).  A position that merely possesses enough merit           
          to avoid sanctions for frivolousness will not satisfy this                  
          standard; rather, the position must have a "reasonable basis both           
          in law and fact".  Id.                                                      
               As relevant herein, the position of the United States that             
          must be examined against the substantial justification standard             
          with respect to the administrative proceeding is the position               
          taken by the Commissioner as of the date of the notice of                   
          deficiency.  Sec. 7430(c)(7)(B).  The position of the United                
          States that must be examined against the substantial                        
          justification standard with respect to the judicial proceeding is           
          the position taken by the Commissioner in her answer to the                 
          petition.  Bertolino v. Commissioner, 930 F.2d 759, 761 (9th Cir.           
          1991), affg. an unpublished decision of this Court; Sher v.                 




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