James H. Swanson and Josephine A. Swanson - Page 27

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               the prohibited transactions rules, it was clearly                      
               reasonable for respondent not to concede her position                  
               on answer and to analyze thoroughly all positions                      
               presented by petitioner's counsel during the litigation                
               stage of the case.  [Emphasis added.]                                  
          We read the preceding statements as an acknowledgment by                    
          respondent that her litigation position, as developed in the                
          administrative proceedings and adopted in her answer, was without           
          a foundation in fact or law.  This case is distinguishable from             
          those in which respondent promptly conceded an unreasonable                 
          position taken in her answer, thereby avoiding an award of                  
          litigation costs.  Nothing occurred between the filing of                   
          respondent's answer and her notice of no objection to alter the             
          fact that she had misapplied the prohibited transaction rules of            
          section 4975 to petitioners' case.  Accordingly, we find that               
          respondent's litigation position with respect to IRA #1 was not             
          substantially justified.  Petitioners are therefore entitled to             
          an award of litigation costs under section 7430.                            
               As respondent's determination of deficiencies with respect             
          to IRA #2 was inexorably linked to the fate of IRA #1, the award            
          of litigation costs is also intended to cover respondent's                  
          litigation position with respect to IRA #2.19                               
               b. The House Issue                                                     
               Petitioners contend that respondent was not substantially              
          justified in determining that the sale of the Algonquin property            


          19                                                                          
               See discussion of IRA #2 supra p. 11.                                  




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