Michael H. Johnson and Patricia E. Johnson - Page 7




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               The determination of reasonableness is based on all of the             
          facts and circumstances surrounding the proceeding and the legal            
          precedents relating to the case.  See Coastal Petroleum Refiners,           
          Inc. v. Commissioner, 94 T.C. 685, 694-695 (1990).  A position              
          has a reasonable basis in fact if there is such relevant evidence           
          as a reasonable mind might accept as adequate to support a                  
          conclusion.  See Pierce v. Underwood, supra at 565.  A position             
          is substantially justified in law if legal precedent                        
          substantially supports the Commissioner's position given the                
          facts available to the Commissioner.  See Coastal Petroleum                 
          Refiners, Inc. v. Commissioner, supra at 688.  Determining the              
          reasonableness of the Commissioner's position and conduct                   
          requires considering what the Commissioner knew at the time.  See           
          Rutana v. Commissioner, 88 T.C. 1329, 1334 (1987); DeVenney v.              
          Commissioner, 85 T.C. 927, 930 (1985).                                      
               The fact that the Commissioner loses on the merits or                  
          concedes the case does not establish that a position was not                
          substantially justified; however, it is a factor to be                      
          considered.  See Powers v. Commissioner, 100 T.C. 457, 471                  
          (1993), affd. in part and revd. in part 43 F.3d 172 (5th Cir.               
          1995).                                                                      
               Respondent interviewed many people in order to determine               
          what had actually transpired between petitioner Michael H.                  
          Johnson (Mr. Johnson) and officials from the City of Lancaster              






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