Eugene J. Phillips and Barbara A. Phillips - Page 3

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          costs may be made only where a taxpayer has exhausted available             
          administrative remedies, sec. 7430(b)(1), and no award of costs             
          may be made with respect to any portion of an administrative or             
          judicial proceeding that the taxpayer has unreasonably                      
          protracted, sec. 7430(b)(4).  Moreover, the costs claimed must be           
          reasonable in amount.  Sec. 7430(c).                                        
               Petitioners bear the burden of proving that each of the                
          foregoing requirements has been satisfied.1  Rule 232(e).  The              
          requirements are conjunctive, and failure to prove any one will             
          preclude an award of costs to petitioners.  Minahan v.                      
          Commissioner, 88 T.C. 492, 497 (1987).                                      
               Respondent contends that petitioners have not shown that the           
          position of the United States was not substantially justified and           
          that the amount of attorney's fees claimed is reasonable.                   
          Respondent concedes that petitioners have satisfied the other               

          1    References to sec. 7430 in this opinion are to that section            
          as amended by sec. 1551 of the Tax Reform Act of 1986, Pub. L.              
          99-514, 100 Stat. 2752 (effective for proceedings commenced after           
          Dec. 31, 1985), and by sec. 6239(a) of the Technical and                    
          Miscellaneous Revenue Act of 1988, Pub. L. 100-647, 102 Stat.               
          3342, 3743-3746 (effective with respect to proceedings commenced            
          after Nov. 10, 1988).  Sec. 7430 was amended by the Taxpayer Bill           
          of Rights 2 (TBR2), Pub. L. 104-168, sec. 701, 110 Stat. 1452,              
          1463-1464 (1996), effective with respect to proceedings commenced           
          after July 30, 1996.  The amendments to the section place on the            
          Commissioner the burden of establishing that the position of the            
          Commissioner was substantially justified.  Sec. 7430(c)(4)(B).  A           
          judicial proceeding is commenced in this Court with the filing of           
          a petition.  Rule 20(a).  Petitioners filed their petition on May           
          30, 1995.  Accordingly, the amendments to sec. 7430 enacted by              
          TBR2 do not apply here.  Maggie Management Co. v. Commissioner,             
          108 T.C. 430 (1997); Schlicher v. Commissioner, T.C. Memo. 1997-            
          163; Sicard v. Commissioner, T.C. Memo. 1996-476.                           




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