- 8 -
that they exhausted their administrative remedies within the
meaning of section 7430(b)(1);3 that they did not unreasonably
protract the proceedings within the meaning of section
7430(b)(4); and that their claimed costs are reasonable, sec.
7430(c)(1) and (2). These requirements are in the conjunctive.
Minahan v. Commissioner, 88 T.C. 492, 497 (1987). Petitioners
must prove each and every requirement. Rule 232(e); Welch v.
Helvering, 290 U.S. 111, 115 (1933); Nalle v. Commissioner, 55
F.3d 189, 191 (5th Cir. 1995), affg. T.C. Memo. 1994-182; Lennox
v. Commissioner, 998 F.2d 244, 248 (5th Cir. 1993), revg. in part
T.C. Memo. 1992-382; Gantner v. Commissioner, 92 T.C. 192, 197
(1989), affd. 905 F.2d 241 (8th Cir. 1990).
Respondent agrees that petitioners have met all of the above
requirements except two. Respondent disputes petitioners'
contention that her position was not substantially justified, and
respondent argues that some of petitioners' claimed costs are not
reasonable.
2. Whether Respondent's Position was Substantially Justified
Whether respondent's position was substantially justified
turns on a finding of reasonableness, based on all the facts and
circumstances of the case, as well as any legal precedents which
may relate thereto. Wilkerson v. United States, supra at 119;
Nalle v. Commissioner, supra at 191; Coastal Petroleum Refiners,
3 This requirement only applies to an award of reasonable
litigation costs. Sec. 7430(b)(1).
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: May 25, 2011