- 13 -
The relevant inquiry is "whether * * * [the Commissioner]
knew or should have known that * * * [his] position was invalid
at onset". Nalle v. Commissioner, 55 F.3d 189, 191 (5th Cir.
1995), affg. T.C. Memo. 1994-182. We look to whether the
Commissioner's position was reasonable given the available facts
and circumstances at the time that the Commissioner took his
position. See Maggie Management Co. v. Commissioner, supra at
443; DeVenney v. Commissioner, 85 T.C. 927, 930 (1985).
The fact that the Commissioner eventually concedes, or even
loses, a case does not establish that his position was
unreasonable. See Estate of Perry v. Commissioner, 931 F.2d
1044, 1046 (5th Cir. 1991); Sokol v. Commissioner, 92 T.C. 760,
767 (1989). However, the Commissioner's concession does remain a
factor to be considered. See Powers v. Commissioner, 100 T.C.
457, 471 (1993), affd. in part, revd. in part and remanded on
another issue 43 F.3d 172 (5th Cir. 1995).
As relevant herein, the position of the United States that
must be examined against the substantial justification standard
with respect to the recovery of administrative costs is the
position taken by the Commissioner as of the date of the notice
of deficiency. See sec. 7430(c)(7)(B). The position of the
United States that must be examined against the substantial
justification standard with respect to the recovery of litigation
costs is the position taken by the Commissioner in the answer to
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: May 25, 2011