6
Circuit's opinion in Wachtell, Lipton produced well-defined
conflicts with the Court of Appeals for the Seventh Circuit's
opinion in Jerome Mirza. By May 19, 1993, the Commissioner had
appealed Citrus Valley, which presented an acknowledged conflict
with the Court of Appeals for the Seventh Circuit's opinion in
Jerome Mirza. Citrus Valley also presented issues similar to
those decided in Vinson & Elkins and Wachtell, Lipton. Under
these circumstances, respondent's decision to await the outcome
on appeal of the lead actuarial cases, including Citrus Valley,
before settling this case was substantially justified. A failure
by the Commissioner or the taxpayers to pursue any of the lead
cases to a definitive conclusion would have defeated the purpose
of the litigation format.
Our opinion in Citrus Valley Estates v. Commissioner, supra,
was affirmed by the Court of Appeals for the Ninth Circuit on
March 8, 1995. The period in which the Commissioner might have
filed a petition for writ of certiorari did not expire until June
7, 1995. Following the Commissioner's decision not to seek
certiorari, a concession letter was sent to petitioner's counsel
on June 14, 1995, which resulted in the aforesaid Settlement
Stipulation filed July 18, 1995.
Respondent's position with respect to actuarial assumptions
in this case was the same as her position in Vinson & Elkins,
Wachtell, Lipton, and Citrus Valley. The Commissioner's position
had merit and was competently presented at trial and argued on
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