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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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