Jeffrey L. Beecroft and Carol Larkin-Beecroft - Page 10

                                                                               - 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).                                                                                                      




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  Next

Last modified: May 25, 2011