William and Arlene G. Kingston - Page 4

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          substantially prevailed with respect to the amount in controversy           
          or with respect to the most significant issue or set of issues              
          presented, and (3) the taxpayer satisfies the applicable net                
          worth requirements.  Sec. 7430(c)(4)(A).  Respondent concedes               
          that petitioners meet the second and third criteria listed above;           
          however, respondent contends that the position taken in both the            
          administrative and litigation aspects of the proceedings was                
          substantially justified.  Rule 232(e); Dixson Corp. v.                      
          Commissioner, 94 T.C. 708, 714-715 (1990); Gantner v.                       
          Commissioner, 92 T.C. 192, 197 (1989), affd. 905 F.2d 241 (8th              
          Cir. 1990).  Accordingly, the issue is whether "the position of             
          the United States in the proceeding was not substantially                   
          justified."  Gantner v. Commissioner, 905 F.2d at 245.                      
               In deciding this issue, the Court must first identify the              
          point at which the United States is considered to have taken a              
          position and then decide whether the position taken from that               
          point forward was not substantially justified.  The "not                    
          substantially justified" standard is applied as of the separate             
          dates that respondent took a position in the administrative                 


          4(...continued)                                                             
          proving that the Commissioner's position in the administrative              
          proceeding and the proceeding in this Court was substantially               
          justified.  However, the provisions of TBOR 2 are effective only            
          with respect to proceedings commenced after July 30, 1996.  The             
          provisions of TBOR 2 do not apply to this case because                      
          petitioners filed their petition on Aug. 14, 1995.  See Maggie              
          Management Co. v. Commissioner, 108 T.C. 430, 441 (1997).                   




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