-8-
sanctions for frivolousness will not satisfy this standard;
rather, it must have a "reasonable basis both in law and fact."
Pierce v. Underwood, supra at 564-565. A position is not
substantially justified in law if legal precedent does not
substantially support the Commissioner's position given the facts
available to the Commissioner. Coastal Petroleum Refiners, Inc.
v. Commissioner, supra at 688. The Commissioner cannot escape an
award for costs pursuant to section 7430 simply because a case
presents a question of fact. Minahan v. Commissioner, 88 T.C.
492, 500-502 (1987).
The fact that the Commissioner eventually loses or concedes
the case is not determinative as to whether the taxpayer is
entitled to an award of administrative or litigation costs.
Sokol v. Commissioner, 92 T.C. 760, 767 (1989); Wasie v.
Commissioner, 86 T.C. 962, 968-969 (1986). 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 470, 472.
Petitioner has the burden of establishing that respondent's
position was not substantially justified. Rule 232(e); Dixson
Intl. Serv. Corp. v. Commissioner, 94 T.C. 708, 715 (1990). For
petitioner to prevail, it must show that respondent's position,
in fact as well as in law, was not justified to a degree that
could satisfy a reasonable person. Determining the
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