Jeffrey L. Beecroft and Carol Larkin-Beecroft - Page 12

                                                                               - 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

Last modified: May 25, 2011