John A. and Donna L. Rowe - Page 9




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               Whether the position of the United States was “not                     
          substantially justified” turns on an analysis of all the facts              
          and circumstances, as well as any relevant legal precedents.                
          Coastal Petroleum Refiners, Inc. v. Commissioner, 94 T.C. 685,              
          688 (1990); Sher v. Commissioner, 89 T.C. 79, 84 (1987), affd.              
          861 F.2d 131 (5th Cir. 1988).  A position is substantially                  
          justified if it is justified to a degree that could satisfy a               
          reasonable person or it has a reasonable basis in both law and              
          fact.  Pierce v. Underwood, 487 U.S. 552, 565, 566 n.2 (1988);              
          Wilkes v. United States, __ F.3d __, __ (11th Cir., Apr. 22,                
          2002); Maggie Mgmt. Co. v. Commissioner, supra at 443; Livingston           
          v. Commissioner, T.C. Memo. 2000-387.  The fact that the United             
          States loses or concedes issues is not determinative as to                  
          whether the taxpayer is entitled to an award of reasonable                  
          litigation costs.  Sokol v. Commissioner, 92 T.C. 760, 767                  
          (1989); Wasie v. Commissioner, 86 T.C. 962, 968-969 (1986).                 
               Petitioner generally argues that respondent’s position was             
          not substantially justified because no position against relief              
          from joint and several liability for petitioner was reasonable              
          under former section 6013(e)8 or section 6015, which replaced               


               8Former sec. 6013(e) provided that a spouse could be                   
          relieved of tax liability if the spouse proved:  (1) A joint                
          return was filed; (2) the return contained a substantial                    
          understatement of tax attributable to grossly erroneous items of            
          the other spouse; (3) in signing the return, the spouse seeking             
          relief did not know, and had no reason to know, of the                      
                                                             (continued...)           





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