Anita C. Human - Page 11

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          disagree.  Inconsistent positions were not appropriate here.                
          There was no doubt about the facts, and the State law was clear             
          that the payment to petitioner in 1992 was in the nature of a               
          property settlement and not alimony.                                        
               In sum, we find that respondent failed to carry the burden             
          in establishing that the position taken during the administrative           
          proceeding was substantially justified.                                     
                    Judicial Proceeding                                               
               We now examine whether respondent's position in the judicial           
          proceeding was substantially justified.  The position taken in              
          respondent's answer was the same as in the notice of deficiency;            
          i.e., respondent claimed that the $750,000 payment was includable           
          in petitioner's income for 1992.  As stated above, respondent was           
          in possession of information which established that this position           
          was erroneous over a year before the answer was filed.                      
               Respondent argues, however, that new information was                   
          received after the time the answer was filed (January 13, 1997).            
          Respondent claims that the legal memorandum received from Beeler            
          on September 22, 1995, did not disclose that the payment was made           
          by the clerk of the Superior Court pursuant to a property                   
          condemnation order and not by Human directly.  Respondent claims            
          that it was not until August 20, 1997, that he knew the clerk and           
          not Human had made the payment.  This, respondent asserts, formed           
          the basis for filing a notice of no objection to petitioner's               





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