- 5 -
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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