William and Arlene G. Kingston - Page 10

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          Appeals to which appeal lies has already passed upon the issue              
          before us, efficient and harmonious judicial administration calls           
          for us to follow the decision of that court."  Golsen v.                    
          Commissioner, 54 T.C. 742, 757 (1970), affd. 445 F.2d 985 (10th             
          Cir. 1971).                                                                 
                                     Conclusion                                       
               On this record, the Court concludes that respondent's                  
          position on the substantive issues in the instant case had no               
          basis in fact or law at the time respondent issued the notices of           
          deficiency or during the litigation of this case.10  It follows             
          that respondent's position was not substantially justified either           
          when respondent issued the notices of deficiency or during the              
          litigation herein.  Accordingly, the Court holds that petitioners           
          are entitled to an award for administrative and litigation costs            
          under section 7430.  Petitioners' motion, therefore, will be                
          granted.                                                                    




          9(...continued)                                                             
          substantially justified because it was supported by Hayes v.                
          Commissioner, T.C. Memo. 1995-151, and Levien v. Commissioner,              
          103 T.C. 120 (1994), affd. without published opinion 77 F.3d 497            
          (11th Cir. 1996).  Respondent overlooks the fact that both of               
          these cases applied the "economic reality" test rather than the             
          "worst-case scenario" test, and that neither case was appealable            
          in the Sixth Circuit.                                                       
          10   Both Emershaw v. Commissioner, supra, and Martuccio v.                 
          Commissioner, supra, were decided by the Court of Appeals before            
          respondent's issuance of the notices of deficiency.                         




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