- 6 - advised that litigation costs would be requested if the case could not be resolved quickly. At a May 15, 1998, trial preparation conference, the parties discussed a settlement under which respondent would allow the requested overpayment, and petitioners would agree not to assert a claim for attorney’s fees. Petitioners decided not to accept the settlement and to proceed to trial. The Commissioner’s position is substantially justified if that position could satisfy a reasonable person and if it has a reasonable basis in both fact and law. See Pierce v. Underwood, 487 U.S. 552, 565 (1988). We examine the facts known to the Commissioner at the time the position was taken. See Maggie Management Co. v. Commissioner, 108 T.C. 430, 443 (1997). Respondent must prove that his position was substantially justified. See sec. 7430(c)(4)(B). The fact that the Commissioner eventually loses or concedes a case does not establish an unreasonable position. See Wasie v. Commissioner, 86 T.C. 962, 968-969 (1986). However, the Commissioner’s concession does remain a factor to be considered. See Dugan v. Commissioner, T.C. Memo. 1997-458. Contrary to petitioners’ position, respondent contends that he was substantially justified in his position from the issuance of the statutory notice of deficiency on May 23, 1997, until the calendar call on May 18, 1998. Petitioners did not providePage: Previous 1 2 3 4 5 6 7 8 9 Next
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