James L. and Sherri R. Goertler - Page 7

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          substantially justified.  The position of the United States in an           
          administrative proceeding is established as of the earlier of (1)           
          the date the taxpayer receives notice of a decision of the I.R.S.           
          Office of Appeals, or (2) the date of the notice of deficiency.             
          Sec. 7430(c)(7)(B).  The position of the United States in a                 
          deficiency proceeding in this Court is that set forth in the                
          Commissioner’s answer.  E.g., Maggie Mgmt. Co. v. Commissioner,             
          108 T.C. 430, 442 (1997); see sec. 7430(c)(7)(A).                           
               B.  Substantial Justification                                          
               For purposes of section 7430, a position of the United                 
          States is substantially justified if it has a reasonable basis in           
          both law and fact.  E.g., Maggie Mgmt. Co. v. Commissioner, supra           
          at 443.  The determination of the reasonableness of that position           
          is based upon the available facts that formed the basis for the             
          position, as well as any controlling legal precedent.  Id.  The             
          inquiry is not a static one; that is, a position of the United              
          States that was reasonable when established may become                      
          unreasonable in light of changed circumstances.  See, e.g., Wasie           
          v. Commissioner, 86 T.C. 962, 969 (1986); see also sec. 301.7430-           
          5(c)(2), Proced. & Admin. Regs. (any award of administrative                
          costs may be limited to costs attributable to the portion of the            
          proceeding during which the position of the I.R.S. was not                  
          substantially justified).  The fact that the Commissioner                   
          ultimately concedes an issue does not, by itself, establish that            






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