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based upon the available facts that formed the basis for the
position, as well as any controlling legal precedent. Id. The
fact that the Commissioner ultimately concedes an issue does not,
by itself, establish that his prior position with respect to that
issue was unreasonable. Id. However, it is a factor that may be
considered. Id.
As an initial matter, respondent argues that he is “entitled
to take inconsistent positions against former spouses in the
alimony context.” We agree with respondent. Inconsistent
determinations may be made against the former spouses in order to
protect the revenue in a “whipsaw” situation. See Doggett v.
Commissioner, 66 T.C. 101, 103 (1976); Marten v. Commissioner,
T.C. Memo. 2000-186; Ryan v. Commissioner, T.C. Memo. 1999-109.
Inconsistent positions were appropriate in this case.
Respondent cites Gonzales v. Commissioner, T.C. Memo. 1999-
332, as justification for the position taken in his answer that
the payments made by Mr. Kean were not alimony. Based on the
particular facts in Gonzales, this Court held that the
unallocated support payments there did not constitute alimony
under section 71. As in the instant case, the payments in that
case were made pursuant to an order of a New Jersey court, and
this Court applied New Jersey law in its determination as to
whether the payments constituted alimony under section 71.
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