-21- A prepared by respondent's revenue agent that the facts of the case were known to respondent prior to the date that the notice of deficiency was mailed, we find that respondent's position was not substantially justified as of all relevant dates. The Research and Development Issue Respondent disallowed the $26,676 deduction petitioners claimed for research and development costs for computer software, because petitioners did not establish that they accounted for the costs in a consistent manner as required by section 174. Specifically, respondent determined that in prior years petitioner had capitalized and amortized the costs of computer software; however, in 1990, petitioner expended $26,676 and deducted the entire amount in the year it was paid. Petitioner contends that the $26,676 paid in 1990 was to develop a unique computer program, created from "scratch". Petitioner claims that the software costs incurred in prior years, which were capitalized and amortized, were not research and development costs, but were incurred to purchase commercially available word processing and spreadsheet programs. Respondent's position may be incorrect but substantially justified if a reasonable person could think it correct. Pierce v. Underwood, 487 U.S. at 566. Whether respondent acted reasonably on this issue ultimately turns on the facts available to her which formed the legal basis for the position she took in the deficiency notice and during the litigation. DeVenney v.Page: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Next
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