Pizza Industries, Inc., Domino's Pizza - Page 10




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               The fact that the Commissioner eventually loses or concedes            
          a case does not establish an unreasonable position.  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 respondent as of the date of the notice of                
          deficiency.  See sec. 7430(c)(7)(B).  The position of the United            
          States that must be examined against the substantial                        
          justification standard with respect to the recovery of litigation           
          costs is the position taken by respondent in the answer to the              
          petition.  See Bertolino v. Commissioner, 930 F.2d 759, 761 (9th            
          Cir. 1991), affg. an unpublished decision of the Tax Court; Sher            
          v. Commissioner, 861 F.2d 131, 134-135 (5th Cir. 1988), affg. 89            
          T.C. 79 (1987).  Ordinarily, we consider the reasonableness of              
          each of these positions separately.  See Huffman v. Commissioner,           






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