James D. Schlicher - Page 4

                                         -4-                                          
          show that: (1) Petitioner exhausted available administrative                
          remedies;4 (2) petitioner met the net worth requirement of                  
          section 7430(c)(4)(A)(iii); (3) petitioner has substantially                
          prevailed with respect to the amount in controversy or the most             
          significant issue presented; and (4) the position of respondent             
          was "not substantially justified".  Sec. 7430.                              
               Based upon the entire record, we find that petitioner                  
          satisfies conditions (1) through (3).  However, as discussed                
          below, we find petitioner has not established that the position             
          of respondent was not substantially justified.  As discussed                
          supra at note 3, petitioner bears the burden of proof on this               
          issue.                                                                      
          Position of the United States Substantially Justified                       
               In her notice of deficiency, respondent determined a                   
          deficiency against petitioner of $98,917, alleging that                     
          petitioner had capital gains from the sale of his principal                 
          residence in Livermore, California.  Respondent contended at                
          trial that petitioner used only 1 acre of the Clayton property as           

               3(...continued)                                                        
          respect to proceedings commenced after July 30, 1996.  The                  
          amendments to the section shift to the Commissioner the burden of           
          proving whether the position of the United States 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).  Petitioner filed his petition on Nov. 16,           
          1994.  Accordingly, the changes to sec. 7430 enacted by TBOR-2 do           
          not apply here.                                                             
               4  This requirement applies only to a judgment for an award            
          of reasonable litigation costs.  Sec. 7430(b)(1).                           




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