Phillip A. O'Bryon and Cyndie W. O'Bryon - Page 29




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               Diplomat Associates engaged in an apartment rental activity,           
          and its partners were subject to the section 469 disallowance               
          rule.  Phillip could not deduct any loss incurred by Diplomat               
          Associates unless he disposed of his entire interest in the                 
          partnership in a fully taxable transaction.                                 
               Petitioners assert that respondent was not substantially               
          justified, because respondent conceded the issue on the basis of            
          the same argument petitioners submitted in the audit.                       
               Respondent took the position that Phillip did not dispose of           
          his entire interest in the partnership because the outstanding              
          balance of the loan remained unpaid.  Respondent asserts that the           
          partnership did not report any income from the discharge of                 
          indebtedness.  Respondent, however, did not determine in the                
          notice of deficiency that the partnership had cancellation of               
          indebtedness.  Nor did respondent raise that issue in the answer            
          to the petition.  Respondent has not provided the Court with                
          petitioners' legal argument that was first rejected and then                
          accepted.  Respondent has not provided any legal argument or                
          authority supporting his position that Phillip had not disposed             
          of his entire interest in the partnership.                                  
               We find that respondent has not established that he was                
          substantially justified in taking the position that Phillip had             
          not disposed of his entire interest in the partnership.                     
          Therefore, we shall allow attorney's fees related to this issue.            






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