- 10 - 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 an unpublished decision of this Court; Sher v. Commissioner, 861 F.2d 131, 134-135 (5th Cir. 1988).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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
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