- 10 -- 10 -
7430(c)(4)(A)(i), (7)(A) and (B); Pierce v. Underwood, 487 U.S.
552, 564-565 (1988); Huffman v. Commissioner, 978 F.2d 1139,
1143-1147 (9th Cir. 1992), affg. in part, revg. in part on other
grounds and remanding T.C. Memo. 1991-144; Powers v.
Commissioner, 100 T.C. 457, 470, 472 (1993). As discussed below,
we hold that respondent's position was substantially justified.
(5) The moving party exhausted any administrative remedies
available to him or her in the Internal Revenue Service.6 Sec.
7430(b)(1). Respondent concedes that petitioners met this
requirement.
(6) The moving party has a net worth that did not exceed
$2 million at the time the petition was filed in the case.
Sec. 7430(c)(4)(A)(iii); 28 U.S.C. sec. 2412(d)(2)(B) (1988).
Respondent concedes that petitioners met this requirement.
(7) The amount of costs claimed is reasonable. Sec.
7430(a), (c)(1) and (2). Respondent challenges the
reasonableness of petitioners' claimed costs. On the basis of
amended sec. 7430 to place on the Commissioner the burden of
proving that her position in the administrative proceeding and
the proceeding in this Court were substantially justified. We
need not, and do not, decide whether the TBR2 is applicable to
the instant matter to place the burden of proof on respondent
with respect to this prong. We rule on petitioners' request for
an award of administrative and litigation costs based on the
preponderance of the evidence; it is irrelevant in this case who
bears the burden of proof. See Deskins v. Commissioner, 87 T.C.
305, 322-323 n.17 (1986).
6 This requirement applies only to a judgment for an award
of reasonable litigation costs. Sec. 7430(b)(1).
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