- 2 - determination was in error. In Allen v. Commissioner, T.C. Memo. 1998-406, filed November 13, 1998, we found that a settlement paid to petitioners by their homeowners’ insurance company was for compensatory, and not punitive, damages. Accordingly, the settlement payment was not taxable, and no deficiency resulted. Our findings of fact in Allen v. Commissioner, supra, are incorporated by this reference. A tax litigant may recover the reasonable litigation fees and costs incurred in connection with the litigation only if the four elements of section 7430 are present. See sec. 7430. Those elements are: (1) The fees or costs requested were incurred in an administrative or court proceeding in connection with the determination, collection, or refund of a tax; (2) administrative remedies have been exhausted; (3) the proceedings have not been unreasonably protracted by the taxpayer; and (4) the taxpayer was the prevailing party in the action. See id. The taxpayer will not be treated as the prevailing party if respondent establishes that respondent’s position was substantially justified.2 To be 2 Taxpayer Bill of Rights 2, Pub. L. 104-168, 110 Stat. 1463, 1464, modified sec. 7430(c)(4) by striking the requirement that the party seeking an award must prove that the United States’ position was “not substantially justified” in order to recover. The 1996 amendment, for purposes of this case, provides that “A party shall not be treated as the prevailing party in a proceeding to which subsection (a) applies if the United States establishes that the position of the United States in the proceeding was substantially justified.” Thus, the 1996 amendment effectively shifted the burden of proof on the issue of (continued...)Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: May 25, 2011