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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 a
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