Ronald D. and Paula J. Pittman, et al. - Page 8




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               Respondent concedes that petitioners have satisfied the                
          requirements of section 7430(c)(4)(A).  Petitioners will                    
          nevertheless fail to qualify as the prevailing party if                     
          respondent can establish that his position in the court and                 
          administrative proceedings was substantially justified.  See sec.           
          7430(c)(4)(B).                                                              
               B.  Substantial Justification                                          
               The Commissioner's position is substantially justified if,             
          on the basis of all of the facts and circumstances and the legal            
          precedents relating to the case, the Commissioner acted                     
          reasonably.  See Pierce v. Underwood, 487 U.S. 552 (1988); Sher             
          v. Commissioner, 89 T.C. 79, 84 (1987), affd. 861 F.2d 131 (5th             
          Cir. 1988).  In other words, to be substantially justified, the             
          Commissioner's position must have a reasonable basis in both law            
          and fact.  See Pierce v. Underwood, supra; Rickel v.                        
          Commissioner, 900 F.2d 655, 665 (3d Cir.1990), affg. in part and            
          revg. in part on other grounds 92 T.C. 510 (1989).  A position is           
          substantially justified if the position is "justified to a degree           
          that could satisfy a reasonable person."  Pierce v. Underwood,              
          supra at 565 (construing similar language in the Equal Access to            
          Justice Act).  Thus, the Commissioner's position may be incorrect           
          but nevertheless be substantially justified "'if a reasonable               
          person could think it correct'".  Maggie Management Co. v.                  









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