- 9 -
Inc. v. Commissioner, 94 T.C. 685, 688-696 (1990). We ask
ourselves, "whether * * * [respondent] knew or should have known
that her position was indefensible at the onset". See Nalle v.
Commissioner, supra at 191. Respondent first took a position in
these cases when she issued the subject notices of deficiency.4
Sec. 7430(c)(7)(B)(ii); see, e.g., Han v. Commissioner, T.C.
Memo. 1993-386.
Petitioners allege that respondent's positions were
unreasonable as evidenced by the fact that she conceded a large
percentage of the deficiencies reflected in the subject notice of
deficiencies. We disagree. The Government's position can be
justified even if ultimately rejected by the Court. Wilfong v.
Commissioner, 991 F.2d 359, 364 (7th Cir. 1993). The fact that
respondent eventually loses or has made substantial concessions
is not dispositive in establishing that the positions taken by
respondent were unreasonable, Nalle v. Commissioner, supra at
191; Bouterie v. Commissioner, supra at 1367, but is merely one
factor to consider; Heasley v. Commissioner, 967 F.2d 116, 120
(5th Cir. 1992), affg. in part and revg. in part T.C. Memo.
1991-189; Estate of Perry v. Commissioner, 931 F.2d 1044, 1046
(5th Cir. 1991); Sher v. Commissioner, 89 T.C. 79, 84 (1987),
4 A 30-day letter is not the equivalent of a notice of the
decision from the IRS Office of Appeals or a notice of
deficiency. Consequently, a 30-day letter does not constitute a
position of the United States, for purposes of claiming an award
of administrative costs under sec. 7430. See Estate of Gillespie
v. Commissioner, 103 T.C. 395 (1994).
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