Ronald D. and Paula J. Pittman, et al. - Page 9




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          Commissioner, 108 T.C. 430, 443 (1997) (quoting Pierce v.                   
          Underwood, supra at 566 n.2).                                               
              The relevant inquiry is "whether * * * [the Commissioner]              
          knew or should have known that * * * [his] position was invalid             
          at onset".  Nalle v. Commissioner, 55 F.3d 189, 191 (5th Cir.               
          1995), affg. T.C. Memo. 1994-182.  We look to whether the                   
          Commissioner's position was reasonable given the available facts            
          and circumstances at the time that the Commissioner took his                
          position.  See Maggie Management Co. v. Commissioner, supra at              
          443; DeVenney v. Commissioner, 85 T.C. 927, 930 (1985).                     
               The fact that the Commissioner eventually concedes, or even            
          loses, a case does not establish that his position was                      
          unreasonable.  See Bouterie v. Commissioner, 36 F.3d 1361, 1367             
          (5th Cir. 1994), revg. on other grounds T.C. Memo. 1993-510;                
          Estate of Perry v. Commissioner, 931 F.2d 1044, 1046 (5th Cir.              
          1991); Sokol v. Commissioner, 92 T.C. 760, 767 (1989).  However,            
          the Commissioner's concession does remain a factor to be                    
          considered.  See Powers v. Commissioner, 100 T.C. 457, 471                  
          (1993), affd. in part, revd. in part and remanded on another                
          issue 43 F.3d 172 (5th Cir. 1995).                                          
               As relevant herein, the position of the United States that             
          must be examined against the substantial justification standard             
          with respect to the recovery of administrative costs is the                 
          position taken by the Commissioner as of the date of the notice             







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