Ronald D. and Paula J. Pittman, et al. - Page 16




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          under the facts of petitioners' cases, IC should be required to             
          use the accrual method of accounting.                                       
               Thus, in these cases, the fact that respondent eventually              
          conceded does not establish that his position was unreasonable.             
          See Bouterie v. Commissioner, 36 F.3d at 1367; Estate of Perry v.           
          Commissioner, 931 F.2d at 1046; Sokol v. Commissioner, 92 T.C. at           
          767.                                                                        
               Moreover, respondent has never conceded that IC should not             
          be required to use the accrual method of accounting.  Rather, as            
          described by the attorney in the Assistant Chief Counsel's                  
          office, respondent's concession was based on "a poor choice of              
          words" in the stipulation of facts that amounted to "the                    
          concession of a key fact".  After discovering the error,                    
          respondent promptly conceded his position.  It was reasonable for           
          respondent to take the position that IC should be required to use           
          the accrual method of accounting until the time as respondent               
          committed what he regarded as a litigation error.  Shortly after            
          discovering the error respondent conceded the cases.                        
               Therefore, we hold that respondent has established that his            
          position in the administrative and litigation proceedings was               
          substantially justified because he acted reasonably given the               
          legal precedent and the circumstances surrounding petitioners'              
          cases.  Accordingly, petitioners are not entitled to recover                
          administrative or litigation costs.                                         







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