Terrell Equipment Company, Inc., et al. - Page 4




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          taxpayer, however, will not be treated as the prevailing party if           
          the Commissioner establishes that the Commissioner’s position was           
          substantially justified.  Sec. 7430(c)(4)(B).  For purposes of              
          the administrative proceedings, respondent’s position is that               
          which was articulated in the notice of deficiency.  Sec.                    
          7430(c)(7)(B); Huffman v. Commissioner, 978 F.2d 1139, 1143-1147            
          (9th Cir. 1992), affg. in part and revg. in part T.C. Memo. 1991-           
          144; Maggie Mgmt. Co. v. Commissioner, 108 T.C. 430, 442 (1997).            
          For purposes of the court proceedings, respondent’s position is             
          that which was set forth in the answer.  Sec. 7430(c)(7)(A);                
          Huffman v. Commissioner, supra at 1147-1148; Maggie Mgmt. Co. v.            
          Commissioner, supra at 442.                                                 
               The substantially justified standard is “essentially a                 
          continuation of the prior law’s reasonableness standard.”                   
          Swanson v. Commissioner, 106 T.C. 76, 86 (1996).  A position is             
          substantially justified if it is justified to a degree that could           
          satisfy a reasonable person and has a reasonable basis in both              
          fact and law.  Pierce v. Underwood, 487 U.S. 552, 565 (1988);6              
          Portillo v. Commissioner, supra at 28; Huffman v. Commissioner,             
          supra at 1147; Swanson v. Commissioner, supra at 86.  A position            

               6  Although the dispute in Pierce v. Underwood, 487 U.S. 552           
          (1988), arose under the provisions of the Equal Access to Justice           
          Act (EAJA), 28 U.S.C. sec. 2412(d) (1994), the relevant                     
          provisions of the EAJA are almost identical to the language of              
          sec. 7430.  Cozean v. Commissioner, 109 T.C. 227, 232 n.9 (1997).           
          We, therefore, consider the holding in Pierce v. Underwood,                 
          supra, to be applicable to the case before us.  Id.                         





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