James D. Schlicher - Page 6

                                         -6-                                          
               Whether the position of the United States in this proceeding           
          was substantially justified depends on whether respondent's                 
          positions and actions were reasonable in light of the facts of              
          the case and the applicable legal precedents.  Sher v. Commis-              
          sioner, 89 T.C. 79, 84 (1987), affd. 861 F.2d 131 (5th Cir.                 
          1988).  The inquiry must be based on the facts reasonably avail-            
          able to respondent when the position was maintained.  Coastal               
          Petroleum Refiners, Inc. v. Commissioner, 94 T.C. 685, 689                  
          (1990).                                                                     
               In deciding this issue, we must identify the point in time             
          at which the United States is first considered to have taken a              
          position, and then decide whether the position taken from that              
          point forward was not substantially justified.  Ordinarily,                 
          respondent takes a litigating position on the date the answer to            
          the petition is filed.  Huffman v. Commissioner, 978 F.2d 1139,             
          1148 (9th Cir. 1992), affg. in part and revg. in part on other              
          grounds and remanding T.C. Memo. 1991-144.  Therefore, we begin             
          by reviewing the facts reasonably available to respondent on                
          March 24, 1995, the date she filed her answer to the amended                
          petition, in order to evaluate the reasonableness of respondent's           
          position.  Id.                                                              
               Respondent's position in this case was that petitioner held            
          50 acres of the Clayton property for business or investment, and            
          to that extent, the cost allocable to such use cannot be included           
          in petitioner's cost of purchasing a new residence.  Respondent             




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