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Although we ultimately held in favor of petitioner on the
section 183 issue, our conclusion regarding petitioner’s profit
objective was not easy. Respondent presented facts in support of
his position that petitioner’s primary objective in conducting
his mining activity was not to make a profit, and respondent’s
arguments with respect to this highly fact-intensive issue were
reasonable and not frivolous. Although we did not agree with
respondent’s arguments in the final analysis, respondent has
persuaded us that his position had a reasonable basis in fact and
law. We hold, therefore, that respondent’s litigating position
regarding the section 183 issue was substantially justified and
that petitioner is not entitled to an award of litigation costs
under section 7430.
To reflect the foregoing,
An appropriate order and
decision will be entered under
Rule 155.
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Last modified: May 25, 2011