Mid-Del Therapeutic Center, Inc. - Page 9




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            this Court, holding that the Commissioner’s determination to                               
            impose the additions to tax was arbitrary, capricious, or without                          
            sound basis in fact or law and remanded for further proceedings.                           
            On remand, the taxpayer filed a motion for litigation costs.                               
                  In Mauerman II, the taxpayer contended that the                                      
            determination of the Court of Appeals that the Commissioner’s                              
            failure to waive the addition to tax was an abuse of his                                   
            discretion necessarily led to a conclusion that the                                        
            Commissioner’s position was unreasonable and urged us to grant                             
            the taxpayer’s motion for reasonable litigation costs.  Although                           
            we agreed with the taxpayer’s conclusion that the Commissioner’s                           
            litigating position in Mauerman I was unreasonable under the                               
            circumstances involved there, we recognized the possibility that                           
            a different conclusion might be reached in other cases.  We                                
            explained our position as follows:                                                         
                        In Mauerman I, we stated that, in order to prevail                             
                  on the addition to tax issue, “petitioner must show                                  
                  * * * that respondent’s refusal to waive is an abuse of                              
                  discretion.”  In reversing our decision, the Court of                                
                  Appeals agreed with petitioner * * * that the                                        
                  Commissioner should have waived the addition to tax.                                 
                  The question before us, then, is whether respondent was                              
                  substantially justified in defending, in the instant                                 
                  litigation, an administrative determination that was                                 
                  held by the Court of Appeals to be an abuse of                                       
                  discretion; i.e., arbitrary, capricious, or without                                  
                  sound basis in fact.  While there may be other                                       
                  situations where such a holding would not necessarily                                
                  determine that respondent was not substantially                                      
                  justified, our review of the record in the instant case                              
                  persuades us that petitioner has carried his burden in                               
                  that respect.                                                                        





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