- 19 - damages. The Appeals officer also considered the application of section 1033 to the circumstances of petitioners’ facts. Accordingly, petitioners were forced to decide whether to proceed to trial. Approximately 3 months prior to trial, petitioners proceeded to procure information from third parties that would show that the insurance company’s payment was not intended to settle petitioners’ claim for punitive damages.12 A few days before trial, respondent’s attorney became aware that the insurance company’s lawyer would testify that the $130,000 payment was not for “bad faith” or punitive damages. Respondent’s attorney had expected that the insurance company’s lawyer would testify otherwise. In spite of that newly discovered information, respondent proceeded to trial, and, ultimately, respondent’s position in the litigation was held to be unjustified, beginning 3 days before trial. Respondent, relying on sec. 301.7430-1(b)(2), Proced. & Admin. Regs., contends that there was more information available to petitioners at the time of the Appeals conference and that petitioners’ failure to seek out and/or present that information to the Appeals officer should result in a failure to exhaust administrative remedies. On the other hand, petitioners contend that they provided the Appeals officer with relevant information 12 Subsequent to the Appeals conference, petitioners’ pre- trial cost to develop third party information was $34,031. By comparison, the amount of the income tax deficiency was $39,697.Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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