-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).
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: May 25, 2011