James D. Schlicher - Page 5

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          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.                                                                 






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