Clarence Michael Cherveny - Page 6




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          to a degree that could satisfy a reasonable person."  Pierce v.             
          Underwood, supra at 565.  The Court must "consider the basis for            
          respondent's legal position and the manner in which the position            
          was maintained."  Wasie v. Commissioner, 86 T.C. 962, 969 (1986).           
          The reasonableness of the Commissioner’s position and conduct               
          necessarily requires considering the facts available to the                 
          Commissioner at that time.  Coastal Petroleum Refiners, Inc. v.             
          Commissioner, 94 T.C. 685, 689 (1990); DeVenney v. Commissioner,            
          85 T.C. 927, 930 (1985).  Whenever there is a factual                       
          determination, the Commissioner is not obliged to concede a case            
          until the Commissioner receives the necessary documentation which           
          proves the taxpayer's contentions.  Brice v. Commissioner, T.C.             
          Memo. 1990-355, affd. without published opinion 940 F.2d 667 (9th           
          Cir. 1991); Currie v. Commissioner, T.C. Memo. 1989-23.  The fact           
          that the Commissioner eventually loses or concedes a case does              
          not establish an unreasonable position.  Sokol v. Commissioner,             
          92 T.C. 760, 767 (1989).                                                    
               In this case, respondent received third party payer                    
          information, the Form W-2, which stated that petitioner received            
          taxable wages of $4,889.98 in 1996.  Respondent attempted to                
          verify the information with petitioner and asked petitioner to              
          provide substantiation that he did not receive the money.                   
          Petitioner produced only a copy of the second check that was                
          dated in 1998.  Respondent was justified in not accepting the               






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