John Bowden, Inc. - Page 10




                                       - 10 -                                         

          not allowed a section 362 basis adjustment in order to protect              
          the revenue should the Bowdens prevail on their issue.                      
               In its motion, however, petitioner does not address whether            
          respondent's position with respect to the adjustments contained             
          in the notice of deficiency was substantially justified.                    
          Petitioner argues that because respondent failed to acknowledge             
          the section 362 basis adjustment until the amended answer to the            
          amendment to petition was filed, respondent's position was                  
          unreasonable and petitioner is entitled to litigation costs.  We            
          disagree.  Petitioner does not explain, nor does the record                 
          suggest, how the section 362 basis adjustment relates to the                
          deficiency amounts contained in the notice of deficiency.  We               
          therefore find that respondent's position regarding the basis               
          adjustments to be irrelevant to petitioner's motion.                        
               Even if we were to consider respondent's position with                 
          respect to the section 362 basis adjustments, we have recognized            
          that the Government may, at times, take alternative or                      
          inconsistent positions with respect to different taxpayers.  Rule           
          31(c); Dixson Intl. Serv. Corp. v. Commissioner, 94 T.C. 708, 717           
          (1990); Barkley Co. v. Commissioner, 89 T.C. 66, 68 (1987).                 
          There are limits, however, to the propriety of taking                       
          inconsistent positions.  If a so-called inconsistent position has           
          no possible chance of success, it has been held to be                       
          unreasonable.  Dixson Intl. Serv. Corp. v. Commissioner, supra.             





Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  Next

Last modified: May 25, 2011