Simpson Financial Services, Inc. - Page 10

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          affd. 861 F.2d 131 (5th Cir. 1988).  For petitioners to prevail,            
          respondent's position, as a matter of both fact and law, must not           
          have been "justified to a degree that could satisfy a reasonable            
          person."  Pierce v. Underwood, supra at 565; Wilkerson v. United            
          States, supra at 119.  Whether respondent's position has a                  
          reasonable basis in fact and law turns in part on whether there             
          is "substantial evidence" to support it.  Pierce v. Underwood,              
          supra at 564-565; Powers v. Commissioner, 100 T.C. 457, 473                 
          (1993).  Respondent must have at least some relevant evidence               
          sufficient to support her position.                                         
               Respondent developed her position in the instant case based            
          on her examination and investigation of petitioners' returns.               
          Cf.  Powers v. Commissioner, supra.  In the notices of                      
          deficiency, respondent premised the adjustments primarily on                
          petitioners' failure to substantiate items on their returns.                
          Deductions are a matter of legislative grace, and petitioners               
          bore the burden of establishing their entitlement thereto.                  
          New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934).  In            
          addition, section 6001 imposed on petitioners an affirmative duty           
          to maintain books and records sufficient to establish items                 
          reported on their returns.  It was reasonable for respondent not            
          to concede the adjustments until she had received and verified              
          adequate substantiation for the items in question.  Harrison v.             
          Commissioner, 854 F.2d 263, 265 (7th Cir. 1988), affg. T.C. Memo.           
          1987-52; Sokol v. Commissioner, 92 T.C. 760, 765 (1989).                    




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