Eugene J. Phillips and Barbara A. Phillips - Page 5

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          to persuade the trier of fact does not necessarily mean that the            
          Commissioner's position did not have a reasonable basis in fact,            
          Gantner v. Commissioner, 92 T.C. 192, 198 (1989), affd. 905 F.2d            
          241 (8th Cir. 1990), unless that evidence is unusually scanty or            
          unworthy of belief, VanderPol v. Commissioner, 91 T.C. 367, 370             
          (1988).  The Commissioner cannot escape an award of costs                   
          pursuant to section 7430 simply because a case presents questions           
          of fact, Minahan v. Commissioner, supra at 500-502, or of witness           
          credibility, Windsor Prod. Corp. v. Commissioner, T.C. Memo.                
          1995-556.  A position is not substantially justified in law if              
          legal precedent does not substantially support the Commissioner's           
          position given the facts available to the Commissioner.  Coastal            
          Petroleum Refiners, Inc. v. Commissioner, supra at 688.                     
               Respondent's position, which was stated in the notice of               
          deficiency, was that petitioners' horse activity was an activity            
          not entered into for profit.  In the answer, respondent denied              
          certain of petitioners' allegations.                                        
               Petitioners contend that respondent's position was not                 
          substantially justified because:  (1) Respondent failed to                  
          exercise reasonable and appropriate discretion to resolve this              
          action without a court proceeding, (2) respondent did not conduct           
          any pretrial discovery, (3) respondent relied on the presumption            
          of correctness accorded the determination in the notice of                  
          deficiency and did not present any evidentiary or legal support             
          for respondent's position, (4) the Court found no support for               




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