- 6 -
B. Position of the United States and the Substantially
Justified Standard
Respondent contended in Martin v. Commissioner, supra, that
the petition was valid as to Martin because he authorized Berg to
sign and file the petition. To be substantially justified, the
Commissioner's position must have a reasonable basis in both law
and fact. See Pierce v. Underwood, 487 U.S. 552, 565 (1988);
Hanover Bldg. Matls., Inc. v. Guiffrida, 748 F.2d 1011, 1015 (5th
Cir. 1984); Powers v. Commissioner, 100 T.C. 457, 470, 473
(1993), affd. on this issue, revd. in part and remanded on other
issues 43 F.3d 172 (5th Cir. 1995). For a position to be
substantially justified, there must be substantial evidence to
support it. See Pierce v. Underwood, supra at 564-565; Powers v.
Commissioner, supra at 473.
The fact that the Commissioner eventually loses or concedes
a case does not establish that a taxpayer is entitled to an award
of reasonable litigation and administrative costs. See Wilfong
v. United States, 991 F.2d 359, 364 (7th Cir. 1993); Hanson v.
Commissioner, 975 F.2d 1150, 1153 (5th Cir. 1992); Sokol v.
Commissioner, 92 T.C. 760, 767 (1989). However, it is a factor
to be considered. See Estate of Perry v. Commissioner, 931 F.2d
1044, 1046 (5th Cir. 1991); Powers v. Commissioner, supra at 471.
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