- 4 - Petitioners bear the burden of proving that each of the foregoing requirements has been satisfied.2 Rule 232(e). The requirements are conjunctive, and failure to prove any one will preclude an award of costs to petitioners. Minahan v. Commissioner, 88 T.C. 492, 497 (1987). Respondent contends that petitioners have not shown that the position of the United States was not substantially justified and that the amount of attorney's fees claimed is not reasonable because the applicable cost of living adjustment (COLA) was improperly calculated. Respondent concedes that petitioners have satisfied the other requirements for the award of reasonable administrative and litigation costs. We shall first consider whether respondent's position was substantially justified. A position is substantially justified if it is justified to a degree that could satisfy a reasonable person and has a reasonable basis in both fact and law. Pierce v. Underwood, 487 U.S. 552, 565 (1988); Nalle v. Commissioner, 55 F.3d 189, 191 (5th Cir. 1995), affg. T.C. Memo. 1994-182; Swanson v. Commissioner, 106 T.C. 76, 86 (1996). The determination of reasonableness is based on all of the facts and circumstances surrounding the proceedings. Nalle v. Commissioner, supra at 2 Because the relevant proceedings in the instant case were commenced prior to the date of enactment of the Taxpayer Bill of Rights 2, Pub. L. 104-168, sec. 701, 110 Stat. 1452, 1463 (1996), respondent does not bear the burden of proving that the position of the United States was substantially justified.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
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