- 11 -
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 an unpublished decision of this Court; Sher v.
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