Donald S. Hazelton - Page 14

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          taken until the date the notice of deficiency was issued.  The              
          documentary evidence provided to the Internal Revenue before the            
          issuance of the deficiency notice was insufficient.                         
               In Lennox v. Commissioner, 998 F.2d 244 (5th Cir. 1993),               
          revg. in part T.C. Memo. 1992-382, the Fifth Circuit Court of               
          Appeals held that, in determining whether respondent's position             
          is substantially justified on the date of issuance of the notice            
          of deficiency under section 7430(c)(7)(B)(ii), the position must            
          be analyzed in the context of what caused respondent to take the            
          position set out in the notice of deficiency.  The Court                    
          reiterated the holdings in Pierce v. Underwood, supra, and Powers           
          v. Commissioner, supra, that respondent's position is                       
          substantially justified if the position is "justified to a degree           
          that could satisfy a reasonable person".  However, the Court                
          noted that respondent's position is not substantially justified             
          if, at the time the notice of deficiency is issued, respondent              
          had merely a "suspicion" of the taxpayer's liability, and the               
          opportunity existed for further investigation.                              
               In this case, respondent had a great deal more than a                  
          suspicion of petitioner's liability at the time the notice of               
          deficiency was issued.  Respondent had received credible third-             
          party information from payers that petitioner had been the                  
          recipient of income during 1992 that he had not reported.                   
          Respondent's records reflected that petitioner had not filed a              





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