Estate of Leon Spear, Deceased, Jeannette Spear, Harvey Spear, and Robin Spear, Administrators, and Jeannette Spear - Page 9

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          supra at 564-565; Powers v. Commissioner, 100 T.C. 457, 473                 
          (1993), affd. on this issue and revd. in part and remanded on               
          other issues 43 F.3d 172 (5th Cir. 1995), remanded 51 F.3d 34               
          (5th Cir. 1995).                                                            
               The fact that the Commissioner eventually loses or concedes            
          the case does not in itself establish that a position is                    
          unreasonable.  Wilfong v. United States, 991 F.2d 359, 364 (7th             
          Cir. 1993).  However, it is a factor to be considered.  Estate of           
          Perry v. Commissioner, 931 F.2d 1044, 1046 (5th Cir. 1991);                 
          Powers v. Commissioner, supra at 471.  The taxpayer need not show           
          bad faith to establish that the Commissioner's position was not             
          substantially justified for purposes of a motion for litigation             
          costs under section 7430.  Estate of Perry v. Commissioner,                 
          supra; Powers v. Commissioner, supra.                                       
          C.   Whether Respondent Had a Basis in Fact for the Position in             
               the Notice of Deficiency                                               
               1.   Respondent's Investigation Before the Notice of                   
               Respondent investigated this case before issuing the notice            
          of deficiency.  Respondent's agents interviewed the decedent and            
          Mrs. Spear and sent document requests to them.  Respondent                  
          summoned third parties, reviewed public records, and examined the           
          decedent and Mrs. Spear's bank accounts and financial statements.           

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