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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 an unpublished decision of the Tax Court; Sher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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