Michael H. Johnson and Patricia E. Johnson - Page 2




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          Rule 232(a)(2).  Accordingly, we rule on petitioners' motion on             
          the basis of the parties' submissions and the existing record.              
          See Rule 232(a)(1).  The portions of our opinion on the merits in           
          the instant case, Johnson v. Commissioner, T.C. Memo. 1998-448              
          (Johnson I), that are relevant to our disposition of this motion            
          are incorporated herein by this reference.                                  
               After concessions,2 the issues for decision are:  (1)                  
          Whether petitioners are the "prevailing party" in the underlying            
          tax case; (2) whether petitioners unreasonably protracted the               
          Court's proceeding; and (3) whether the amounts of administrative           
          and litigation costs claimed by petitioners are reasonable.                 
          Background                                                                  
               Petitioners are husband and wife.  Mr. Johnson operated Ford           
          and Lincoln-Mercury motor vehicle dealerships.  The substantive             
          issues in Johnson I were:  (1) Whether petitioners were entitled            
          to defer recognition of gain on the disposition of certain                  
          property pursuant to section 1033; (2) whether petitioners were             
          liable for the fraud penalty pursuant to section 6663(a), or, in            
          the alternative, the accuracy-related penalty pursuant to section           
          6662(a) for 1992; and (3) whether petitioners were liable for the           
          addition to tax for failure to file timely their return for 1992.           
          We held that (1) petitioners were entitled to defer recognition             
          of gain on the disposition of that property pursuant to section             
          1033; (2) petitioners were not liable for the fraud or accuracy-            


               2  Respondent concedes that petitioners exhausted their                
          administrative remedies and substantially prevailed.                        


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