James H. Swanson and Josephine A. Swanson - Page 31

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          Accordingly, we find that petitioners have failed to meet their             
          burden of proof on this issue.20                                            
               Our conclusion is not diminished by the fact that respondent           
          ultimately conceded this matter in petitioners' favor prior to              
          trial.  The determination of whether respondent's position was              
          substantially justified is based on all the facts and                       
          circumstances surrounding a proceeding; the fact that respondent            
          ultimately concedes or loses a case is not determinative.  See              
          Wasie v. Commissioner, 86 T.C. 962, 968-969 (1986); DeVenney v.             
          Commissioner, 85 T.C. 927, 930 (1985).                                      
               2.  Net Worth                                                          
               Respondent contends that petitioners have failed to                    
          demonstrate that they satisfied the net worth requirement of                
          section 7430(c)(4)(A)(iii).                                                 
               To qualify as a prevailing party eligible for an award of              
          litigation costs, a taxpayer must establish that he or she has a            
          net worth that did not exceed $2 million "at the time the civil             
          action was filed".21  In the case of a husband and wife seeking             

          20                                                                          
               For similar reasons, we find that it was not unreasonable as           
          a matter of fact or law for respondent to contend in alternative            
          positions that the proceeds from the sale of the Algonquin                  
          property should be adjusted between petitioners and Swansons'               
          Tool.  Having carefully considered petitioners' arguments, we               
          find that they have not met their burden of proving that                    
          respondent was not substantially justified on this point.                   
          21                                                                          
               This requirement is set forth by implication in sec.                   
          7430(c)(4), which states in pertinent part that:                            
                    (A) In general.--The term "prevailing party" means                
               any party in any proceeding to which subsection (a)                    
                                                             (continued...)           



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