Richard Scott Gehrs - Page 7

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               On April 15, 2003, respondent filed an objection to                    
          petitioner’s motion for award of litigation costs.  Respondent              
          contends that petitioner is not the prevailing party within the             
          meaning of section 7430(c)(4)(B)(i) because respondent’s position           
          was substantially justified.  In addition, respondent contends              
          that petitioner unreasonably protracted the proceedings.                    
               Petitioner requests a hearing on the motion if respondent              
          contests the motion.  We, however, conclude that a hearing is not           
          necessary.  Rule 232(a)(2).  Accordingly, we decide petitioner’s            
          motion on the basis of the motion with affidavits and                       
          respondent’s objection with exhibits.                                       
          Discussion                                                                  
               Subject to certain limitations, the prevailing party in any            
          court proceeding may be awarded a judgment for reasonable                   
          litigation costs incurred in connection with such court                     
          proceeding.  Sec. 7430(a)(2).  The prevailing party must exhaust            
          the administrative remedies available to it within the Internal             
          Revenue Service, and the prevailing party must not have                     
          unreasonably protracted any portion of the administrative or                
          court proceeding.  See sec. 7430(b)(1), (3).                                
               The term “prevailing party” means “any party * * * which (I)           
          has substantially prevailed with respect to the amount in                   
          controversy, or (II) has substantially prevailed with respect to            
          the most significant issue or set of issues presented”.  Sec.               






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