- 14 - exchange of documents. The trial in August of 1994 had to be recessed because of his delays in producing documents, many of which he and petitioners had earlier denied possessing. We find that petitioners and Attorney Riley unreasonably protracted this proceeding. Respondent's Position The position of the United States for purposes of litigation costs refers to the position of the United States in a judicial proceeding. Sec. 7430(c)(7)(A). A judicial proceeding in this Court is commenced with the filing of a petition. Rule 20(a). Generally, respondent initially takes a position on the date she files her answer in response to the petition. Huffman v. Commissioner, 978 F.2d 1139, 1148 (9th Cir. 1992), affg. in part and revg. in part T.C. Memo. 1991-144. Whether respondent's position is substantially justified turns on a finding of reasonableness, based upon all the facts and circumstances as well as legal precedents relating to the cases. See Pierce v. Underwood, 487 U.S. 552 (1988) (construing similar language in the Equal Access to Justice Act, 28 U.S.C. sec. 2412 (1988)); Rickel v. Commissioner, 900 F.2d 655, 665 (3d Cir. 1990), affg. in part and revg. in part on other grounds 92 T.C. 510 (1989); Huffman v. Commissioner, supra at 1147. The fact that the Commissioner eventually loses or concedes the case does not in itself establish that a position is unreasonable.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: May 25, 2011