- 8 - law. Norgaard v. Commissioner, 939 F.2d 874, 881 (9th cir. 1991), affg. in part and revg. in part T.C. Memo. 1989-390; Maggie Mgmt. Co. v. Commissioner, 108 T.C. 440, 443 (1997). Although the Commissioner’s litigating position may have been incorrect in hindsight,5 it is substantially justified “if a reasonable person could think it correct”. Pierce v. Underwood, supra at 566 n.2. “Thus, whether respondent acted reasonably in the instant case ultimately turns upon those available facts which formed the basis for the position taken in the notice of deficiency and during the litigation, as well as upon any legal precedents related to the case.” Maggie Mgmt. Co. v. Commissioner, supra at 443. When a taxpayer seeks an award of litigation costs under section 7430, we look at the Commissioner’s answer to ascertain his initial litigating position, and we must decide whether the Commissioner’s position was reasonable by examining the facts reasonably available to the Commissioner at the time he asserted his position in his answer. Maggie Mgmt. Co. v. Commissioner, supra at 443; DeVenney v. Commissioner, 85 T.C. 927, 930 (1985). In Tinnell I, respondent’s litigating position with respect to 5The fact that the Commissioner eventually loses a case does not by itself establish that the Commissioner’s position was unreasonable, but the litigating result is a factor that may be considered. See Anthony v. United States, 987 F.2d 670, 674 (10th Cir. 1993); Estate of Perry v. Commissioner, 931 F.2d 1044, 1046 (5th Cir. 1991); Sokol v. Commissioner, 92 T.C. 760, 767 (1989).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: May 25, 2011