Stephen J. Roling and Peggy A. Roling - Page 11




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          justification standard with respect to the recovery of litigation           
          costs is the position taken by the Commissioner in the answer to            
          the petition.  See Bertolino v. Commissioner, 930 F.2d 759, 761             
          (9th Cir. 1991), affg. an unpublished decision of this Court;               
          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.  There was no                
          answer filed in this case.  See Rule 175(b).  There is, however,            
          no indication that respondent's position changed between the                
          issuance of the notice of deficiency and the partial concession             
          by respondent's counsel.                                                    
               The issue of whether respondent's positions in the                     
          underlying proceedings were substantially justified shall be                
          addressed first.  In order to decide whether a position of                  
          respondent was substantially justified, we must review the                  
          substantive merits of the case.                                             
                    Reasonable Basis In Fact                                          
               Petitioners do not suggest that respondent applied the wrong           
          legal standard in taking a position on their documentation of the           
          loan in 1994 as an explanation of apparent unreported income.               
          Petitioners argue that respondent's position on the adjustment              
          was not reasonable in fact based on the evidence they presented.            






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