Maggie Management Company - Page 19

                                       - 19 -                                         
               Courts will not award litigation costs under section 7430(a)           
          unless a prevailing party has exhausted the administrative                  
          remedies available to such party within the IRS.  Sec.                      
          7430(b)(1).  Moreover, no award for reasonable administrative or            
          litigation costs may be made with respect to any portion of the             
          civil proceeding during which a prevailing party has                        
          "unreasonably protracted" such proceeding.  Sec. 7430(b)(4).                
               Respondent agrees that petitioner has:  (1) Substantially              
          prevailed with respect to the amount in controversy; (2)                    
          exhausted the administrative remedies available to it; and (3)              
          shown that the net worth and number of employee requirements have           
          been met.  Respondent contends, however, that respondent's                  
          position was substantially justified so that petitioner is not a            
          prevailing party for purposes of section 7430.  In the                      
          alternative, respondent asserts that:  (1) Petitioner has                   
          unreasonably protracted the Court and administrative proceedings;           
          and (2) the amount of administrative and litigation costs claimed           
          by petitioner is unreasonable.                                              
               Petitioner bears the burden of proving that respondent's               
          position in the proceedings was not substantially justified or              
          was unreasonable.  Sec. 7430(c)(4)(A)(i); Rule 232(e); Polyco,              
          Inc. v. Commissioner, supra at 965; Minahan v. Commissioner,                
          supra at 498; DeVenney v. Commissioner, 85 T.C. 927, 928-930                
          (1985).  The pre-1986 version of section 7430 used the term                 
          "unreasonable."  TRA 1986 replaced "unreasonable" with "not                 




Page:  Previous  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  Next

Last modified: May 25, 2011