Leon L. Sicard and Eleanor Sicard - Page 6

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               For purposes of petitioners' motion, respondent took a                 
          position in the administrative proceeding when the statutory                
          notice of deficiency was issued to petitioners on March 11, 1993,           
          sec. 7430(c)(7)(B), and in the court proceeding when the answer             
          to the petition was filed on July 26, 1993, Huffman v.                      
          Commissioner, 978 F.2d 1139, 1148 (9th Cir. 1992), affg. in part,           
          revg. in part and remanding T.C. Memo. 1991-144.  Although                  
          ordinarily the reasonableness of each of those positions is                 
          considered separately to allow respondent to change her position,           
          id. at 1144-1147, it appears that respondent took the same                  
          position in both the notice and the answer.  In the instant case,           
          respondent determined that the payment in question, which                   
          petitioner received from the partnership during 1987, was taxable           
          in that year.  In the answer, respondent denied petitioners'                
          allegations that the payment represented a guaranteed payment               
          that was taxable to petitioner in the years when the payment was            
          accrued by the partnership pursuant to section 707(c) and the               
          regulations thereunder.                                                     
               At those times, respondent argued that the payment in                  
          question was a payment governed by section 707(a) that was                  
          taxable when received, and that the duty of consistency barred              
          petitioners from contending that the payment was taxable in                 
          closed years.  Petitioners contend that those positions were not            
          substantially justified based on the facts in the record and the            
          applicable law.  Those arguments were abandoned by respondent 2             




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