Thomas J. Mitchell and Janice M. Mitchell - Page 5

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            for his position on this issue, asserting, in part, that the fact                          
            “that there was no prior case authority under the facts of this                            
            case * * * would appear to defeat petitioners’ argument that                               
            respondent’s position [on this issue] was unreasonable.”  We                               
            disagree.  We do not believe it reasonable for respondent to                               
            assert an accuracy-related penalty under section 6662(a) in a                              
            case of first impression involving the unclear application of an                           
            amendment to the Internal Revenue Code.  See Bunney v.                                     
            Commissioner, 114 T.C.     (2000); Lemishow v. Commissioner, 110                           
            T.C. 110, 114 (1998); Hitchins v. Commissioner, 103 T.C. 711, 720                          
            (1994); see also Everson v. United States, 108 F.3d 234, 237-238                           
            (9th Cir. 1997).  Given the lack of any precedent disfavoring                              
            petitioners or favoring respondent, it was unreasonable for                                
            respondent to have prosecuted his determination that petitioners                           
            had not with substantial authority or in good faith taken a                                
            position that petitioner’s tax home was in Orland Park, Illinois.                          
            The accuracy-related penalty provisions do not apply to a nontax                           
            shelter case to the extent that a taxpayer has substantial                                 
            authority for a position, see sec. 6662(d)(2)(B) and (C), and                              
            substantial authority exists when the weight of authorities                                
            supporting that position is substantial vis-a-vis the weight of                            
            authorities supporting a contrary position, see sec.                                       
            1.6662-4(d)(3)(i), Income Tax Regs.  Petitioners acted reasonably                          
            and in good faith in taking their position.  Subject to a narrow                           

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