Donald S. Hazelton - Page 9

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               As a result of the filing of petitioner's motion, the Court            
          ordered that the decision entered on August 21, 1996, be vacated            
          and set aside, and that the vacated decision be refiled as a                
          stipulation of settlement.  Respondent was ordered to file a                
          written response to petitioner's motion.  See Rules 232(f),                 
          231(c).  In the response, respondent objected to petitioner's               
          motion, contending that respondent's position was substantially             
          justified both in the administrative proceeding and in the Court            
          proceeding.                                                                 
                                     Discussion                                       
               A taxpayer who substantially prevails in an administrative             
          or Court proceeding may be awarded a judgment for reasonable                
          costs incurred in such proceedings.  Sec. 7430(a)(1) and (2).  A            
          judgment may be awarded under section 7430 if a taxpayer (1) is             
          the "prevailing party", (2) exhausted the administrative remedies           
          available to the taxpayer within the IRS (if the judgment is for            
          litigation costs), and (3) did not unreasonably protract the                
          proceedings.  Sec. 7430(a), (b)(1), (b)(4).  A taxpayer must                
          satisfy each of these three requirements to be entitled to a                
          judgment under section 7430.  Respondent concedes that petitioner           
          exhausted the administrative remedies available and did not                 
          unreasonably protract the proceedings.  Therefore, the Court is             
          left to decide whether petitioner was the prevailing party.                 







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