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Frances Ryan were alimony; (2) respondent took inconsistent
positions by disallowing deductions claimed as alimony by
petitioner in 1991, 1992, and 1993, while allowing those same
deductions claimed in 1990 and 1994; and (3) respondent's
position was not supported by facts and law.
Respondent asserts that it was reasonable to argue
inconsistent positions against petitioner and Frances Ryan in
order to protect the revenue, and that the failure to audit
petitioner's prior or subsequent taxable years is irrelevant to a
determination of the tax liability for the years at issue in this
case. Furthermore, respondent argues that this case focused on
the legal question of whether the subsequent State court order
modified the alimony award in the original Judgment of Divorce by
eliminating the termination-upon-death provision. Under these
circumstances, respondent contends, the position of the United
States was substantially justified.
We agree with respondent that taking inconsistent positions
with respect to petitioner and Frances Ryan was reasonable.
Inconsistent determinations may be made against the former
spouses in order to protect the revenue in a "whipsaw" situation.
See Doggett v. Commissioner, 66 T.C. 101, 103 (1976); Smith v.
Commissioner, T.C. Memo. 1996-292. Unlike the case of Human v.
Commissioner, T.C. Memo. 1998-65, inconsistent positions were
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