John E. and Concetta Lozon - Page 7

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          the Commissioner's position and conduct requires considering what           
          the Commissioner knew at the time.  See Rutana v. Commissioner,             
          88 T.C. 1329, 1334 (1987); DeVenney v. Commissioner, 85 T.C. 927,           
          930 (1985).                                                                 
               The fact that the Commissioner loses on the merits or                  
          concedes the case does not establish that a position was not                
          substantially justified; however, it is a factor to be                      
          considered.  Powers v. Commissioner, 100 T.C. 457, 471 (1993).              
               The Court has adopted an issue-by-issue approach to section            
          7430, apportioning the requested awards between those issues for            
          which the Commissioner was and those issues for which the                   
          Commissioner was not substantially justified.  See Powers v.                
          Commissioner, 51 F.3d 34, 35 (5th Cir. 1995); Swanson v.                    
          Commissioner, supra at 102; see also sec. 301.7430-5(c)(2),                 
          Proced. & Admin. Regs.  We follow that approach here and                    
          separately discuss whether respondent's position on the                     
          classification issue, pension issue, and self-employment tax                
          issue was not substantially justified.                                      
               1.  Classification Issue                                               
               This Court, in Mosteirin II, ruled that the Commissioner was           
          substantially justified in litigating the employee versus                   
          independent contractor issue in a case involving NOA's of                   
          Allstate even though the Commissioner had unsuccessfully taken              
          the identical position in this Court twice before.  We noted that           
          the motion for costs presented a close case and that our opinion            




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