W. Gregory and Patricia L. Ryan - Page 7




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          appropriate in this case because the facts and law did not make             
          it clear that the payments were alimony.                                    
               We also agree with respondent that it is irrelevant whether            
          petitioner took alimony deductions on his 1990 and 1994 returns.            
          It is well settled that respondent may assert a position as in              
          the instant case even though he raised no objection to similar              
          claims by the taxpayer in prior years.  See Yeaman v. United                
          States, 584 F.2d 322, 326 (9th Cir. 1978); Rose v. Commissioner,            
          55 T.C. 28, 32 (1970); Meneguzzo v. Commissioner, 43 T.C. 824,              
          836 (1965).  Even if the Commissioner erroneously accepted the              
          tax treatment of certain items in previous years, he is not                 
          precluded from correcting that error in a subsequent year.  See             
          Hawkins v. Commissioner, 713 F.2d 347, 351-352 (8th Cir. 1983),             
          affg. T.C. Memo. 1982-451.  We focus, therefore, on whether                 
          respondent's position for the years in suit was supported by fact           
          and law.  See Pierce v. Underwood, 487 U.S. 552, 565 (1988).                
               For purposes of litigation costs in a judicial proceeding,             
          the Government initially takes a position on the date the answer            
          is filed.  See Lockett v. Commissioner, T.C. Memo. 1994-144; Han            
          v. Commissioner, T.C. Memo. 1993-386.  Respondent filed an answer           
          on August 6, 1996.  Thus, we shall consider respondent's position           
          as of this date in determining whether to award petitioner                  
          litigation costs.  Respondent's position in the answer was the              
          same as in the notice of deficiency; i.e., that petitioner's                





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