Thu Cuc Thi Huynh - Page 16




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          and circumstances at the time that the Commissioner took his                
          position.  Maggie Mgmt. Co. v. Commissioner, supra at 443;                  
          DeVenney v. Commissioner, 85 T.C. 927, 930 (1985).                          
               The fact that the Commissioner eventually concedes, or even            
          loses, a case does not establish that his position was                      
          unreasonable.  Estate of Perry v. Commissioner, 931 F.2d 1044,              
          1046 (5th Cir. 1991); Sokol v. Commissioner, 92 T.C. 760, 767               
          (1989).  However, the Commissioner's concession does remain a               
          factor to be considered.  Powers v. Commissioner, 100 T.C. 457,             
          471 (1993), affd. in part, revd. in part and remanded on another            
          issue 43 F.3d 172 (5th Cir. 1995).                                          
               As relevant herein, the position of the United States that             
          must be examined against the substantial justification standard             
          with respect to the recovery of administrative costs is the                 
          position taken by the Commissioner as of the date of the notice             
          of deficiency.  Sec. 7430(c)(7)(B)(ii).  The position of the                
          United States that must be examined against the substantial                 
          justification standard with respect to the recovery of litigation           
          costs is the position taken by the Commissioner in the answer to            
          the petition.  Bertolino v. Commissioner, 930 F.2d 759, 761 (9th            
          Cir. 1991), affg. an unpublished decision of this Court; Sher v.            
          Commissioner, supra at 134-135; see sec. 7430(c)(7)(A).                     
          Ordinarily, we consider the reasonableness of each of these                 
          positions separately in order to allow the Commissioner to change           






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