Estate of Leon Spear, Deceased, Jeannette Spear, Harvey Spear, and Robin Spear, Administrators, and Jeannette Spear - Page 2

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               To prevail, petitioners must show that respondent's position           
          in this case was not substantially justified.  We conclude that             
          petitioners did not meet this requirement.  Thus, we will deny              
          petitioners' motion.                                                        
               In light of this conclusion, we need not decide respondent's           
          contentions that petitioners are not entitled to relief because             
          (1) they unreasonably protracted the proceedings, (2) the amount            
          of costs they claim is not reasonable, and (3) they did not pay             
          or incur the amounts claimed.                                               
               The parties have submitted affidavits and memoranda                    
          supporting their positions.  We decide the motion based on the              
          memoranda, affidavits, and exhibits attached to the affidavits.             
          The parties do not dispute the material facts in the affidavits             
          or the authenticity of the exhibits attached to the affidavits.             
          Respondent requested a hearing, but we conclude that a hearing is           
          not necessary to properly decide this motion.  Rule 232(a)(3).              
               Unless otherwise indicated, section references are to the              
          Internal Revenue Code.  All references to section 7430 are to the           
          section as amended by section 1551 of the Tax Reform Act of 1986,           
          Pub. L. 99-514, 100 Stat. 2752, and by section 6239(a) of the               

          Memo. 1993-213, vacated and remanded 41 F.3d 103 (3d Cir. 1994),            
          and T.C. Memo. 1996-137.  In those opinions, we decided whether,            
          for 1975, 1976, and 1977, petitioners failed to report                      
          substantial amounts of income and whether they were liable for              
          the addition to tax for fraud.                                              

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