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in Butts v. Commissioner, supra, invited the presentation of
additional evidence--evidence the Commissioner put forward in
Mosteirin I. We concluded it was not unreasonable for the
Commissioner to try to sustain the position because these
additional facts were not before the Court in Butts and Smithwick
v. Commissioner, supra. Furthermore, Butts and Smithwick were on
appeal when the trial in Mosteirin I was held. In concluding
that the Commissioner was substantially justified, we cited Moore
v. Commissioner, T.C. Memo. 1989-306, which held that the
Government's position is not unreasonable when testimony is
needed to clarify a factual controversy.
The Court further noted that since the trial in Mosteirin I
the U.S. Court of Appeals for the Eleventh Circuit affirmed our
decisions in Butts and Smithwick, we reaffirmed our view in
Mosteirin I, and these developments should have facilitated
resolution of the classification issue in other cases involving
NOA's of Allstate. The Court left "'for another day the decision
whether costs and fees should be available in a case in which
respondent continues to advocate a position * * * previously
judicially * * * disapproved'". Mosteirin v. Commissioner, T.C.
Memo. 1995-419 (quoting Mearkle v. Commissioner, 87 T.C. 527, 533
n.10 (1986), revd. on other grounds 838 F.2d 880 (6th Cir.
1988)). That day has come.
In Lozon I, we found that there were no essential facts
distinguishable from those presented in Butts and no legal
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