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person. E.g., Anthony v. United States, 987 F.2d 670, 674 (10th
Cir. 1993); Norgaard v. Commissioner, 939 F.2d 874, 881 (9th Cir.
1991), affg. in part and revg. in part T.C. Memo. 1989-390;
Powers v. Commissioner, supra at 472. For a position to be
substantially justified, "substantial evidence" must exist to
support it. Pierce v. Underwood, 487 U.S. 552, 564 (1988).
"That phrase does not mean a large or considerable amount of
evidence, but rather 'such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.'" Id. at 564-
565 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). Respondent's position may be incorrect but
substantially justified "if a reasonable person could think it
correct". Id. at 566 n.2. Thus, whether respondent acted
reasonably in the instant case ultimately turns upon the facts
available to her which formed the legal basis for the position
she took in the deficiency notice and during the litigation.
DeVenney v. Commissioner, supra at 930.
The fact that the Commissioner eventually loses or concedes
a case does not by itself establish that her position is
unreasonable. Estate of Perry v. Commissioner, 931 F.2d 1044,
1046 (5th Cir. 1991); Swanson v. Commissioner, 106 T.C. 76, 94
(1996). However, it "clearly remains" a factor to be considered.
Heasley v. Commissioner, 967 F.2d 116, 120 (5th Cir. 1992), affg.
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