-5- his principal residence. In Schlicher I, we held that petitioner used 43-1/2 of the 51 acres of the Clayton property as his principal residence. Thus, petitioner was entitled to defer the gain therefrom under section 1034(a). Petitioner asserts, based on our holding in Schlicher I, that he has substantially prevailed with respect to both the amount in controversy and the most significant issue. We agree with petitioner on this point. However, the fact that respondent loses the underlying litigation does not require a determination that the position of the Internal Revenue Service (IRS) was unreasonable so as to mandate an award for attorney's fees. Broad Ave. Laundry & Tailoring v. United States, 693 F.2d 1387, 1391-1392 (Fed. Cir. 1982). It does remain, however, a relevant factor to consider in determining the degree of the Commissioner's justification. Estate of Perry v. Commissioner, 931 F.2d 1044, 1046 (5th Cir. 1991). Thus, we must decide whether the position of the United States in this court proceeding was substantially justified. A position is "substantially justified" when it is "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). It is not enough that a position simply has enough merit to avoid sanctions for frivolousness; it must have a "reasonable basis both in law and fact". Id.Page: Previous 1 2 3 4 5 6 7 8 Next
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