- 17 -
or respondent's Appeals officer. However, the fact that
respondent's counsel agreed to settle the case is certainly not
conclusive that Revenue Agent Bacino's adjustments and
respondent's subsequent position that resulted therefrom were
unreasonable. As we have already stated, the Commissioner's
concession of an issue does not necessarily lead to a finding
that the Commissioner's position was not substantially justified.
See, e.g., Wilfong v. United States, 991 F.2d 359, 364 (7th Cir.
1993); Sokol v. Commissioner, supra; Wasie v. Commissioner, 86
T.C. 962, 968-969 (1986). We are aware that respondent's
attorneys have much more latitude to settle a case based on the
hazards of litigation and other considerations than do
respondent's Appeals officers or revenue agents.
Finally, petitioners argue that the standard for awarding
costs under section 7430 by the Court of Appeals for the Fifth
Circuit, the circuit to which this case is appealable, supports
their claim for costs. We have reviewed many Fifth Circuit
cases, including those cited by petitioners, and conclude that
our decision herein properly applies the Fifth Circuit's standard
regarding the award of costs under section 7430 and is consistent
with the precedents established by that court. See Golsen v.
Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir.
1971).
Therefore, we hold that respondent has established that his
position in the administrative and litigation proceedings was
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