John A. and Donna L. Rowe - Page 8




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          Commissioner, 92 T.C. 192, 197 (1989), affd. 905 F.2d 241 (8th              
          Cir. 1990).6  Respondent concedes that petitioner has exhausted             
          the administrative remedies available, has substantially                    
          prevailed with respect to the amount in controversy,7 and did not           
          unreasonably protract the proceedings.                                      
          I.   Whether the Position of the United States Was Substantially            
               Justified                                                              
               In order to obtain reasonable litigation costs in this case,           
          petitioner must establish that respondent’s position in the court           
          proceeding was not substantially justified.  We apply the “not              
          substantially justified” standard as of the date that the United            
          States takes its position in the case.  For purposes of a court             
          proceeding, the position of the United States is that which is              
          set forth in the answers to the petitions.  Grant v.                        
          Commissioner, supra at 952; Maggie Mgmt. Co. v. Commissioner, 108           
          T.C. 430, 442 (1997).                                                       




               6In the Taxpayer Bill of Rights 2, Pub. L. 104-168, sec.               
          701(b), 110 Stat. 1452, 1463 (1996), sec. 7430(c)(4) was amended            
          to require the Government to establish that its position was                
          substantially justified.  This amendment is effective for                   
          proceedings commenced after July 30, 1996.  The petitions in this           
          case were filed before July 30, 1996; thus, the burden remains on           
          petitioner.  Maggie Mgmt. Co. v. Commissioner, 108 T.C. 430, 438-           
          441 (1997).                                                                 
               7Although respondent concedes that petitioner has                      
          substantially prevailed with respect to the amounts in                      
          controversy, he disputes that petitioner has substantially                  
          prevailed with respect to all her arguments and contentions.                





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