William C. and Elaine Gaskins - Page 14

                                       - 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