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section 7430(c)(7), the term “position of the United States”
means:
(A) the position taken by the United States in a
judicial proceeding to which subsection (a) applies,
and
(B) the position taken in an administrative
proceeding to which subsection (a) applies as of the
earlier of–-
(i) the date of the receipt by the taxpayer
of the notice of decision of the Internal Revenue
Service Office of Appeals, or
(ii) the date of the notice of deficiency.
Here, the record does not reflect that the Appeals Office
ever issued a notice of decision prior to the issuance of the
notice of deficiency; accordingly, respondent is considered to
have taken a position in the administrative proceedings on the
date the notice of deficiency was issued. Respondent is
considered to have taken a position in the judicial proceedings
herein when the answer was filed. See Huffman v. Commissioner,
978 F.2d 1139, 1148 (9th Cir. 1992), affg. in part and revg. in
part on another ground T.C. Memo. 1991-144. Although the
positions respondent takes in the administrative and judicial
proceedings are normally considered separately, to permit
consideration of changes in respondent’s position in the two
proceedings, see Austin v. Commissioner, T.C. Memo. 1997-157,
here the distinction is of little consequence, as
respondent appears to have taken the same position in both the
notice of deficiency and in the answer.
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Last modified: May 25, 2011