- 12 - C. Substantial Justification A position of the United States in a judicial proceeding is substantially justified if it has a reasonable basis in law and fact. E.g., Maggie Mgmt. Co. v. Commissioner, supra at 443. We determine the reasonableness of respondent’s position in this case based upon the facts available to respondent at the time he took the position (i.e., at the time of the filing of the answer) and the controlling legal precedent at such time. Id. The fact that respondent conceded the fraud issue does not, by itself, establish that his position with respect thereto was unreasonable. Id. However, it is a factor that may be considered. Id. II. Application of the “Substantially Justified” Standard A. General Considerations Section 6663(a) imposes a 75-percent penalty with respect to any portion of an underpayment of tax that is attributable to fraud. Respondent bears the burden of proving fraud by clear and convincing evidence. Rule 142(b). In the case of a joint 5(...continued) substantially justified. Because the accuracy-related penalty is mentioned in only three of the time entries submitted by petitioner’s counsel (none of which establishes the amount of time devoted solely to that issue), we do not think that a separate analysis of respondent’s substantial justification for each of his alternative positions would be fruitful. We therefore do not address the procedural ramifications, if any, of petitioner’s failure to make her claim with respect to respondent’s alternative position in the motion.Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
Last modified: May 25, 2011