- 9 - In deciding this issue, we must identify the point at which the United States is first considered to have taken a position, and then decide whether the position taken was or was not substantially justified. The position taken by the United States, for purposes of litigation costs, is the position of the United States in the judicial proceeding. Sec. 7430(c)(7)(A). The first opportunity for the United States to take a position in the judicial proceeding is in the answer filed. See Huffman v. Commissioner, 978 F.2d 1139, 1148 (9th Cir. 1992), affg. in part, revg. in part T.C. Memo. 1991-144. Therefore, in deciding whether the Government's position was substantially justified, we must review the actions of the IRS District Counsel in answering the petition and the actions of the IRS Appeals officers who considered petitioner's case after the answer was filed. When the answer was filed in this case, respondent denied that there was error contained in the notice of deficiency. Respondent denied error even though the notice of deficiency did not contain a section 362 basis adjustment. Respondent argues that no basis adjustment was allowed because the Government was caught in a potential whipsaw situation, and was trying to prevent the possibility that income could go untaxed. The Bowdens had filed a petition in their case, alleging that they should recognize no gain upon transfer of their assets to the corporation. Respondent contends the corporation was originallyPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
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