Paul Frehe Enterprises, Inc. - Page 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                
                    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.]                                   

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