ABC Rentals of San Antonio, Inc., et al. - Page 8




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          petition.  See Rule 20(a).  Generally, respondent initially takes           
          a position in the litigation on the date he files the answer in             
          response to the petition.  See Huffman v. Commissioner, 978 F.2d            
          1139, 1148 (9th Cir. 1992), affg. in part, revg. in part on other           
          grounds, and remanding T.C. Memo. 1991-144; Han v. Commissioner,            
          T.C. Memo. 1993-386.                                                        
               The Commissioner’s position is substantially justified if              
          that position 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); Sher v. Commissioner, 89 T.C. 79                  
          (1987), affd. 861 F.2d 131 (5th Cir. 1988).  The determination of           
          reasonableness is based on all of the facts and circumstances               
          surrounding the proceeding and the legal precedents relating to             
          the case.  See Coastal Petroleum Refiners, Inc. v. Commissioner,            
          94 T.C. 685, 694-695 (1990).  A position has a reasonable basis             
          in fact if there is such relevant evidence as a reasonable mind             
          might accept as adequate to support a conclusion.  See Pierce v.            
          Underwood, supra at 565.  A position is substantially justified             
          in law if legal precedent substantially supports the                        
          Commissioner’s position given the facts available to the                    
          Commissioner.  See Coastal Petroleum Refiners, Inc. v.                      
          Commissioner, supra at 688.  Determining the reasonableness of              
          the Commissioner’s position and conduct requires considering what           
          the Commissioner knew at the time.  See Rutana v. Commissioner,             






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