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respondent abused his discretion in denying petitioner’s claim
for relief under section 6015(f) for the portions of the capital
gains, mortgage interest, and charitable contributions items
allocable to petitioner.
Petitioner emphasizes the fact that we found that respondent
abused his discretion in denying equitable relief. Petitioner
claims that the facts upon which we based this finding were open
and obvious and gave no reason for respondent to refuse to grant
equitable relief.
A finding that the Commissioner abused his discretion does
not necessarily mean that his litigating position was not
substantially justified. Mid-Del Therapeutic Ctr., Inc. v.
Commissioner, T.C. Memo. 2000-383, affd. 30 Fed. Appx. 889 (10th
Cir. 2002); Mauerman v. Commissioner, T.C. Memo. 1995-237.
Rather, the determination of whether the Commissioner’s position
was not substantially justified where he is found to have abused
his discretion is based on the facts and circumstances of the
particular case, including the evidence in the record. Mid-Del
Therapeutic Ctr., Inc. v. Commissioner, supra; Mauerman v.
Commissioner, supra.
Respondent claims that this is a case of first impression
regarding this Court’s review of the factors listed in Rev. Proc.
2000-15, supra, and his application of these factors was
reasonable in light of the lack of contrary precedent. Respondent
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