W. Gregory and Patricia L. Ryan - Page 5




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          Prevailing Party                                                            
               To be a "prevailing party", a taxpayer must2 (1) establish             
          that respondent's position was not substantially justified; (2)             
          substantially prevail with respect to either the amount in                  
          controversy or the most significant issue or set of issues                  
          presented, and (3) meet the net worth requirements of 28 U.S.C.             
          sec. 2412(d)(2)(B).  See sec. 7430(c)(4)(A)(i), (ii), and (iii).            
               Respondent concedes that petitioners substantially prevailed           
          with respect to the amount in controversy and the most                      
          significant issue involved in this case and met the net worth               
          requirements.  The parties dispute, however, whether respondent's           
          position in the judicial proceeding was substantially justified.            
          Specifically, petitioners make three arguments as to why                    
          respondent's position was not substantially justified:  (1)                 
          Respondent took inconsistent positions with respect to                      
          petitioners and Frances Ryan, claiming that the payments made by            
          petitioners were not alimony, but the payments received by                  


               2In 1996, legislation was enacted which shifted to the                 
          Commissioner the burden of proving whether the position of the              
          United States was substantially justified.  See sec.                        
          7430(c)(4)(B), as amended by the Taxpayer Bill of Rights 2 (TBOR            
          2), Pub. L. 104-168, sec. 701, 110 Stat. 1452, 1463 (1996).  The            
          changes made by this legislation apply only to proceedings                  
          commenced after July 30, 1996.  TBOR 2 secs. 701(d), 702(b), 110            
          Stat. 1464.  Since petitioners filed their petition on Jan. 22,             
          1996, the proceedings at issue were commenced before the                    
          effective date of  TBOR 2, and the changes enacted by TBOR 2 are            
          not applicable.  See Maggie Management Co. v. Commissioner, 108             
          T.C. 430, 441 (1997).                                                       




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