Linda Marie Sherbo - Page 5




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          and whether petitioner has demonstrated that the attorney's fees            
          and costs sought are reasonable litigation costs.                           
               To be a "prevailing party", a taxpayer must substantially              
          prevail with respect to either the amount in controversy or the             
          most significant issue or set of issues presented and must meet             
          the net worth requirements of 28 U.S.C. sec. 2412(d)(2)(B)(1994).           
          See sec. 7430(c)(4).  Even if a taxpayer meets these                        
          requirements, she still is not a "prevailing party" if respondent           
          establishes that the United States' position in the proceeding              
          was substantially justified.  See sec. 7430(c)(4)(B)(i).                    
               Although respondent concedes that petitioner has                       
          substantially prevailed in this case and that petitioner meets              
          the net worth requirements, respondent contends that petitioner             
          is not a prevailing party because respondent was substantially              
          justified in issuing the notices of deficiency.                             
               A position is substantially justified if it could satisfy a            
          reasonable person and if it has a reasonable basis in both fact             
          and law.  See Pierce v. Underwood, 487 U.S. 552, 565 (1988)                 
          (defining "substantially justified" in the context of the Equal             
          Access to Justice Act (EAJA), 28 U.S.C. sec. 2412(d)(1994));                
          Swanson v. Commissioner, 106 T.C. 76, 86 (1996).  A reasonable              
          basis exists if legal precedent substantially supports                      
          respondent's position given the facts available to respondent.              
          See Coastal Petroleum Refiners, Inc. v. Commissioner, 94 T.C.               





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