- 36 -
discussed above, find them to be without merit. Before
continuing, however, we find it necessary to comment on some of
the arguments raised by respondent in her memoranda.
While there was colorable merit to some of the contentions
raised by respondent in her memoranda regarding the question of
net worth, others border on being frivolous and vexatious. As an
illustration, respondent set forth the following proposition in
arguing that additional amounts should be added to petitioner
Josephine Swanson's calculation of net worth:
Florida provides for the equitable distribution of
property between spouses upon divorce. Fla. Stat. ch.
61.075 (1994). * * *
Respondent notes that the record provides no indication
of marital disharmony between the petitioners and
presumes that Florida's equitable distribution statute
does not expressly apply to this case. However, this
significant expectancy to receive an equitable
distribution in the event of divorce may itself
constitute an asset of a spouse entitled to recognition
for purposes of the net worth computation.
Such transparent sophistry speaks for itself and comes perilously
close to meriting an award of fees to petitioners under section
6673(a)(2).
3. Exhaustion of Administrative Remedies
Notwithstanding our conclusion that respondent was not
substantially justified with respect to the DISC issue,
petitioners are not entitled to an award of litigation costs if
it is found that they failed to exhaust their administrative
remedies.
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