William T. and Nicole L. Gladden - Page 8

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          301.7430-7T(a), Temporary Proced. & Admin. Regs., 66 Fed. Reg.              
          726 (Jan. 4, 2001), provides, in part, as follows:                          

               The provisions of the qualified offer rule do not apply                
               if the taxpayer’s liability under the judgment * * * is                
               determined exclusively pursuant to a settlement * * *                  
               [Emphasis supplied.]                                                   

               We agree with petitioners.  The purpose underlying the                 
          qualified offer provision of section 7430(c)(4)(E), like that of            
          rule 68 of the Federal Rules of Civil Procedure, is to encourage            
          settlements by imposing litigation costs on the party not willing           
          to settle.  Herein, legal issues integral to the water rights               
          adjustment were litigated and decided by this Court and by the              
          Court of Appeals for the Ninth Circuit.  Only after those legal             
          issues were litigated and decided was the bottom-line substantive           
          tax adjustment resolved by way of settlement between the parties.           
          The ultimate settlement entered into by the parties herein can in           
          no way be viewed as entered into exclusively pursuant to a                  
          settlement.                                                                 
               To treat the instant water rights adjustment as resolved               
          pursuant to the parties’ settlement would require us to ignore              
          the threshold legal issues relating thereto that were resolved by           
          way of litigation, not settlement, and would require us to treat            
          the related factual allocation issue eventually settled by the              
          parties as controlling for purposes of the settlement limitation            
          of section 7430(c)(4)(E)(ii)(I).  Further, it would require us              





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