- 11 - Dr. Imhoff, indicating that petitioner received $4,147.50 of income in 1991, and on an unsubstantiated assertion by Dr. Imhoff that the $4,147.50 constituted nonemployee income. Respondent did not obtain the necessary documentation from Dr. Imhoff and petitioner until after the notice of deficiency was issued and the answer was filed. Once respondent obtained the necessary information, she had little difficulty confirming most of petitioner's assertions. This process should have preceded the issuance of the notice of deficiency. Respondent argues that the parties have stipulated that "the Commissioner was substantially justified in its [sic] position that petitioner received income from a check of $703.50 in January, 1991." Our determination, however, of whether respondent was "substantially justified" within the meaning of section 7430(c)(4)(A)(i) is based on the position respondent took on August 9, 1994 (i.e., the date the notice of deficiency was issued), and January 17, 1995 (i.e., the date respondent filed her answer). See sec. 7430(c)(7)(A) and (B); Huffman v. Commissioner, supra at 1143-1147. On both of these dates, respondent's position was not substantially justified, because she had an insufficient basis in fact to determine that petitioner had received $4,147.50 of nonemployee income. Portillo II, supra. Respondent did not take a position relating to the $703.50 check until June or July of 1995, when she received a copy of the check. The fact that respondent then tookPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: May 25, 2011