Virginia M. Marten - Page 2




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          costs and fees pursuant to section 7430 and Rule 231.1                      
          Petitioners do not request a hearing on this matter, and we see             
          no reason for a hearing.  See Rule 232(a)(2).  Accordingly, we              
          rule on petitioners' motion on the basis of the parties'                    
          submissions and the existing record.  See Rule 232(a)(1).  We               
          incorporate by reference portions of Marten v. Commissioner, T.C.           
          Memo. 1999-340 (Marten I), our opinion on the merits in the                 
          instant case, that are relevant to the disposition of the motion            
          before us.                                                                  
               After concessions,2 the issue for decision is whether                  
          petitioners are a “prevailing party” in the underlying tax                  
          case.  Subsumed within this issue is the question of whether                
          respondent's position in the underlying tax case was                        
          substantially justified.                                                    
          Background                                                                  
               In 1953, David E. Lane (Mr. Lane) and Virginia M. Marten               
          (Ms. Marten) married.  After legally separating in 1979, Mr. Lane           
          purchased a $750,000 life insurance policy on his own life and              


               1  Unless otherwise indicated, all section references are to           
          the Internal Revenue Code as amended, and all Rule references are           
          to the Tax Court Rules of Practice and Procedure.                           
               2  In respondent's objection to petitioners' motion for                
          costs and fees, respondent concedes that:  (1) Petitioners                  
          substantially prevailed with respect to the amount in controversy           
          and to the most significant issue presented in the Court                    
          proceeding, (2) petitioners have not unreasonably protracted the            
          litigation, and (3) petitioners exhausted their administrative              
          remedies available within the Internal Revenue Service.                     




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