- 7 - and the prevailing party must not protract either the administrative or court proceedings. See sec. 7430(b)(1), (3). The parties agree that petitioner exhausted his administrative remedies.4 A prevailing party is defined as a taxpayer who substantially prevails as to the amount in controversy or with respect to the most significant issue or set of issues. See sec. 7430(c)(4)(A)(i); sec. 301.7430-5(a)(2), Proced. & Admin. Regs. Respondent concedes that petitioner substantially prevailed as to the amount in controversy or with respect to the most significant set of issues. Petitioner will nevertheless fail to qualify as the prevailing party if respondent can establish that respondent’s position in the administrative and court proceedings was substantially justified. See sec. 7430(c)(4)(B). B. Substantial Justification The Commissioner will be substantially justified where his position has a reasonable basis in both law and fact. See Pierce v. Underwood, 487 U.S. 552 (1988); Rickel v. Commissioner, 900 F.2d 655, 665 (3d Cir. 1990), affg. in part and revg. in part on other grounds 92 T.C. 510 (1989); Hanover Bldg. Materials, Inc. v. Guiffrida, 748 F.2d 1011, 1015 (5th Cir. 1984). 4 As a result of our conclusion herein, we need not decide whether petitioner protracted the proceeding.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011