7
brief, though ultimately unsuccessful. Having decided not to
apply to the Supreme Court of the United States for certiorari,
respondent moved very promptly following the expiration of the
time for filing a petition for writ of certiorari to send a
letter to petitioner's counsel conceding this case. In this
case, the concession came within a matter of days. From this
Court's firsthand knowledge of the disposition of hundreds of
these actuarial cases, it is clear that respondent has moved
quickly and with dispatch. Under these circumstances, a taxpayer
would be hard pressed to establish that the Commissioner's
litigating position was maintained for an excessive period of
time following her decision to concede the actuarial cases and
hence was not substantially justified.
It is noted that the settlement in Price v. Commissioner,
supra, occurred when the case was called for trial on June 24,
1993. That date was prior to the affirmances in Vinson & Elkins,
Wachtell, Lipton, and Citrus Valley, all of which were decided in
favor of the taxpayers. The decision in Jerome Mirza &
Associates, Ltd. v. United States, supra, favoring the
Commissioner had been on the books since 1989. In Price, we
said:
Under the foregoing circumstances, we think it
clear that had respondent decided to continue
litigating the instant cases to an unsuccessful
conclusion on the substantive issue, she would have
been justified in so doing at least as long as there
was no further definitive action on that issue at the
appellate level. [102 T.C. at 664.]
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: May 25, 2011