- 7 -- 7 - worth requirements of 28 U.S.C. section 2412(d)(2)(B) at the time the petition in the case was filed. Sec. 7430(c)(4)(A). However, a party shall not be treated as the prevailing party if the United States establishes that the position of the United States in the proceeding was substantially justified. Sec. 7430(c)(4)(B). Respondent contends that the position of the United States was substantially justified and that petitioners have not proved that they exhausted their administrative remedies. Respondent concedes that petitioners have satisfied the other requirements of section 7430. To decide whether respondent's position was substantially justified, the Court must first identify the point in time at which the United States is considered to have taken a position and then decide whether the position taken from that date forward was substantially justified. In general, we bifurcate our analysis and look separately at the dates that respondent took a position in the administrative proceeding and in the proceeding in this Court. Sec. 7430(c)(7)(A) and (B); Huffman v. Commissioner, 978 F.2d 1139, 1144 (9th Cir. 1992), affg. in part, revg. in part and remanding T.C. Memo. 1991-144. In the instant case, however, we may dispense with the bifurcated analysis because respondent's position on each of these dates was the same. Swanson v. Commissioner, 106 T.C. 76, 87 (1996). Respondent took a position in the administrative proceeding whenPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011