- 16 -
Commissioner, 92 T.C. 192, 197 (1989), affd. 905 F.2d 241 (8th
Cir. 1990).
Whether respondent's position is substantially justified is
a question of fact. We resolve such issue by the application of
a reasonableness standard. See Pierce v. Underwood, 487 U.S.
552, 565 (1988) (construing similar language in the Equal Access
to Justice Act (EAJA), 28 U.S.C. sec. 2412 (1988)); see also
Sokol v. Commissioner, 92 T.C. 760, 763 n.7 (1989); Sher v.
Commissioner, 89 T.C. 79, 84 (1987), affd. 861 F.2d 131 (5th Cir.
1988). In considering the reasonableness of respondent's
position, we take into account what respondent knew at the time
that she took the position based on the information available to
her at that time. See Rutana v. Commissioner, 88 T.C. 1329, 1334
(1987).
As relevant herein, the position of the United States that
must be examined against the substantial justification standard
with respect to the administrative proceeding is the position
taken by the Commissioner as of the date of the notice of
deficiency. Sec. 7430(c)(7)(B)(ii). The position of the United
States that must be examined against the substantial
justification standard with respect to the court proceeding is
the position taken by the Commissioner in her answer to the
petition. Bertolino v. Commissioner, 930 F.2d 759, 761 (9th Cir.
1991); Sher v. Commissioner, 861 F.2d 131, 134-135 (5th Cir.
1988), affg. 89 T.C. 79 (1987); see sec. 7430(c)(7)(A).
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