Linda Marie Sherbo - Page 11




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          whipsaw situation as resolved because Mr. Sherbo could no longer            
          claim in the Tax Court the earned income credit at issue.                   
          Respondent immediately conceded petitioner's case allowing                  
          petitioner the earned income credit as claimed on her tax                   
          returns.  Respondent's position throughout the entire judicial              
          proceeding remained reasonably based on the facts known to                  
          respondent and on the well-established legal consequences of                
          those facts.                                                                
               Accordingly, we hold that respondent's position on the                 
          issues in this case was substantially justified and that                    
          petitioner is not entitled to an award for litigation costs under           
          section 7430.  We thus need not address the reasonableness of the           
          costs claimed by petitioner.  Petitioner's motion will therefore            
          be denied.                                                                  
               To reflect the foregoing,                                              
                                                  An appropriate Order                
                                             and Decision will be entered.            


















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