- 5 - 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 forPage: Previous 1 2 3 4 5 6 7 Next
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