Pizza Industries, Inc., Domino's Pizza - Page 9




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          and administrative proceedings was substantially justified.  See            
          sec. 7430(c)(4)(B).                                                         
               B.  Substantial Justification                                          
               The Commissioner may establish that a position is                      
          substantially justified if, based on 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).  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 EAJA).  Thus, the Commissioner's            
          position may even be incorrect but substantially justified "if a            
          reasonable person could think it correct".  Maggie Management Co.           
          v. Commissioner, 108 T.C. 430, 443 (1997).                                  
              The relevant inquiry is "whether * * * [the Commissioner]              
          knew or should have known that [his] position was invalid at the            
          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 takes his                   
          position.  See Maggie Management Co. v. Commissioner, supra at              
          443; DeVenney v. Commissioner, 85 T.C. 927, 930 (1985).                     






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