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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.
Accordingly,
An appropriate order
and decision will be entered.
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Last modified: May 25, 2011