- 22 - (1938)). Respondent's position may be incorrect but substantially justified "if a reasonable person could think it correct". Id. at 566 n.2. Thus, whether respondent acted reasonably in the instant case ultimately turns upon those available facts which formed the basis for the position taken in the notice of deficiency and during the litigation, as well as upon any legal precedents related to the case. DeVenney v. Commissioner, supra at 930; see Nalle v. Commissioner, 55 F.3d 189, 191-192 (5th Cir. 1995), affg. T.C. Memo. 1994-182; Coastal Petroleum Refiners, Inc. v. Commissioner, 94 T.C. 685, 688 (1990). The fact that the Commissioner eventually loses or concedes a case does not by itself establish that the position taken is unreasonable. Estate of Perry v. Commissioner, 931 F.2d 1044, 1046 (5th Cir. 1991); Swanson v. Commissioner, 106 T.C. 76, 94 (1996). However, it is a factor that may be considered. Estate of Perry v. Commissioner, supra at 1046; Powers v. Commissioner, supra at 471. We conclude that petitioner has failed to prove that respondent's position did not have a reasonable basis in fact and law and was not strongly supported by substantial evidence. Although petitioner claimed to be a mere agent or conduit of Ohanesian and SRI in the administrative proceeding before the IRS and in the judicial proceeding before the Tax Court, petitioner had taken the exactly opposite tack in its State court suit. InPage: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Next
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