Bernardo Paz - Page 8

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          facts, coupled with the holding in Smith, provide a basis in fact           
          and law for respondent’s position.                                          
          C.   Conclusion                                                             
               We conclude that respondent’s position in the underlying               
          proceeding had a reasonable basis in both law and fact.  Thus,              
          respondent’s position was substantially justified, and petitioner           
          is not entitled to an award of litigation costs under section               
          7430.  Petitioner’s motion for litigation costs will be denied.             
                                                  An appropriate order                
                                             and decision will be entered.            

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