- 12 -- 12 - 1147. In the instant setting, however, when these positions are the same, we evaluate their reasonableness. Whether the Commissioner's position was substantially justified turns on a finding of reasonableness, based on the facts and circumstances of the case, as well as on any legal precedents that may relate thereto. Nalle v. Commissioner, 55 F.3d 189, 191 (5th Cir. 1995), affg. T.C. Memo. 1994-182; Coastal Petroleum Refiners, Inc. v. Commissioner, 94 T.C. 685, 688-696 (1990). We ask ourselves "whether * * * [the Commissioner] knew or should have known that her position was invalid at the onset". Nalle v. Commissioner, supra at 191. For petitioners to prevail, respondent's position, in fact as well as law, must not have been "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, supra at 565. Whether the Commissioner's position has a reasonable basis in fact and law turns in part on whether there is "substantial evidence" to support it. Id. at 564-565; Powers v. Commissioner, supra at 473. The fact that the Commissioner concedes an issue, in and of itself, does not mean that the Commissioner's position was not substantially justified within the meaning of section 7430(c)(4)(A)(i). Sokol v. Commissioner, 92 T.C. 760, 767 (1989). It remains, however, a relevant factor to consider in determining the degree of the Commissioner's justification. Estate of Perry v. Commissioner, 931 F.2d 1044, 1046 (5th Cir. 1991); Powers v. Commissioner, supra at 471.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
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