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The relevant inquiry is "whether * * * [the Commissioner]
knew or should have known that [his] position was invalid at the
onset". Nalle v. Commissioner, 55 F.3d 189, 191 (5th Cir. 1995),
affg. T.C. Memo. 1994-182. We look to whether the Commissioner's
position was reasonable given the available facts and
circumstances at the time that the Commissioner takes his
position. Maggie Management Co. v. Commissioner, supra at 443;
DeVenney v. Commissioner, 85 T.C. 927, 930 (1985).
The fact that the Commissioner eventually loses or concedes
a case does not establish an unreasonable position. Bouterie v.
Commissioner, 36 F.3d 1361, 1367 (5th Cir. 1994), revg. on other
grounds T.C. Memo. 1993-510; Estate of Perry v. Commissioner, 931
F.2d 1044, 1046 (5th Cir. 1991); Sokol v. Commissioner, 92 T.C.
760, 767 (1989). However, the Commissioner's concession does
remain a factor to be considered. Powers v. Commissioner, 100
T.C. 457, 471 (1993), affd. in part, revd. in part and remanded
on another issue 43 F.3d 172 (5th Cir. 1995).
As relevant herein, the position of the United States that
must be examined against the substantial justification standard
with respect to the recovery of administrative costs is the
position taken by respondent as of the date of the notice of
deficiency. Sec. 7430(c)(7)(B). The position of the United
States that must be examined against the substantial
justification standard with respect to the recovery of litigation
costs is the position taken by respondent in the answer to the
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