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respondent acted reasonably “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. The fact that respondent
eventually loses or concedes a case is not determinative. Sokol
v. Commissioner, 92 T.C. 760, 767 (1989). However, it is a
factor that may be considered. Estate of Perry v. Commissioner,
931 F.2d 1044, 1046 (5th Cir. 1991).
For purposes of the administrative proceedings in this case,
respondent’s position is that which was articulated in the notice
of deficiency, dated May 28, 1999. See sec. 7430(c)(7)(B). For
purposes of the court proceedings in this case, respondent’s
position is that which was set forth in the answer to the
petition filed on October 12, 1999. See Maggie Mgmt. Co. v.
Commissioner, supra at 442. Ordinarily, we consider the
reasonableness of each of these positions separately. Id. Here,
however, we need not consider them separately because there is no
indication that respondent’s position changed or that respondent
became aware of any additional facts that rendered his position
any less justified between the issuance of the notice of
deficiency and the filing of the answer to the petition. See id.
at 442-443; Pittman v. Commissioner, T.C. Memo. 1999-389.
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