- 10 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
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