- 7 - 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. 861Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011