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proceeding, respondent is considered to have taken a position on
the date the notice of deficiency was issued, November 29, 2000.
Respondent’s position with regard to a request for
litigation costs is generally the position taken in the answer.
Huffman v. Commissioner, 978 F.2d 1139, 1144-1147 (9th Cir.
1992). Here, because petitioner elected to have the case heard
under section 7463, no answer was required of respondent. Rule
175(b). Accordingly, respondent's position for the purpose of
the motion is the position maintained by respondent during the
pendency of this case. There is nothing in the record that
suggests that respondent's position changed from that taken in
the notice of deficiency so these positions are, in effect, the
same. Respondent’s position was that petitioner had $5,482 in
gambling income in 1998 that had not been reported. The Court,
therefore, simply considers whether such position was
substantially justified. Maggie Mgmt. Co. v. Commissioner, 108
T.C. 430, 442-443 (1997); Pittman v. Commissioner, T.C. Memo.
1999-389.
Whether the Commissioner's position was substantially
justified turns on a finding of reasonableness, based upon all
the facts and circumstances, as well as the legal precedents
relating to the case. Pierce v. Underwood, 487 U.S. 552, 565
(1988); Sher v. Commissioner, 89 T.C. 79, 84 (1987), affd. 861
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