- 13 -
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 respondent 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 in light of the substantial
justification standard with respect to the recovery of litigation
costs is the position taken by respondent in the answer to the
petition. See Bertolino v. Commissioner, 930 F.2d 759, 761 (9th
Cir. 1991); Sher v. Commissioner, 861 F.2d 131, 134-135 (5th Cir.
1988). Ordinarily, we consider the reasonableness of each of
these positions separately. See Huffman v. Commissioner, 978
F.2d 1139, 1144-1147 (9th Cir. 1992), affg. in part, revg. in
part and remanding on other issues T.C. Memo. 1991-144. In the
present case, however, we need not consider two separate
positions because there is no indication that respondent's
position changed between the issuance of the notice of deficiency
(on July 21, 1999) and the filing of the answer to the petition
(on October 26, 1999). See Swanson v. Commissioner, 106 T.C. 76,
87 (1996).
In order to decide whether respondent's position was
substantially justified, we must review the substantive merits of
the case.
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