Collin L. Dugan - Page 18

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          September 16, 1992.  Although initially disputed by respondent,             
          it is clear, and respondent now concedes that the document was              
          first received in the Service Center on March 18, 1991, at a time           
          when the election could have been effective for NTI's 1991 year.            
          Secs. 1362, 7502.  We view respondent's actions with respect to             
          the initial receipt of the Form 2553 on March 18, 1991, to be               
          relevant in determining whether respondent's position in the case           
          in both the administrative and judicial proceedings should be               
          considered substantially justified.                                         
               Whether respondent's position is substantially justified               
          turns on a finding of reasonableness, based upon all of the                 
          surrounding facts and circumstances, as well as legal precedents            
          relating to the case.  Pierce v. Underwood, 487 U.S. 552, 565               
          (1988); Coastal Petroleum Refiners, Inc. v. Commissioner, 94 T.C.           
          685, 694-695 (1990).  A position is substantially justified if              
          the position is "justified to a degree that could satisfy a                 
          reasonable person."  Pierce v. Underwood, supra at 565.  We may             
          consider the reasonableness of respondent's position in the                 
          administrative proceeding separately from respondent's position             
          in the judicial proceeding.  Huffman v. Commissioner, 978 F.2d              
          1139, 1144-1147 (9th Cir. 1992), affg. in part, revg. in part,              
          and remanding on another issue T.C. Memo. 1991-144.  In this                
          case, however, because the positions are the same, we consider              
          them in a single analysis.                                                  






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