- 22 - We consider each of petitioners' contentions in turn. E. Congressional Intent Petitioners contend that respondent's position in the court proceeding was not substantially justified because respondent's position "is in conflict with stated Congressional intent." In this regard, petitioners rely on the statement made by the Court of Appeals in reversing Adler v. Commissioner, T.C. Memo. 1995- 148, that "As the purpose of the statute [section 402] is to protect and encourage retirement savings, it is plain that a distribution to an employee that occurs incident to his retirement should be entitled to rollover treatment." Adler v. Commissioner, 86 F.3d at 381. Petitioners' contention is tantamount to arguing that respondent's position was unreasonable because respondent lost the case. However, as previously stated, the fact that the Commissioner eventually loses a case does not, by itself, establish that the Commissioner's position was unreasonable. Estate of Perry v. Commissioner, supra; Swanson v. Commissioner, supra; Powers v. Commissioner, supra. Further, we recall that respondent did not lose the present case in this Court. Rather, respondent ultimately lost the case on appeal. Under these circumstances, a taxpayer ordinarily has a heavy burden in contending that respondent's position was unreasonable. The legislative history of section 7430 states that "when a taxpayer loses in the trial court and obtains aPage: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
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