Allen R. Krawczyk - Page 7

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          that his position was substantially justified.  Sec.                        
          7430(c)(4)(B).                                                              
               Respondent contends that petitioner is not the prevailing              
          party within the meaning of section 7430(c)(4) because, while the           
          stipulation and stipulation of settled issues resolved all issues           
          in petitioner’s favor, respondent’s position was substantially              
          justified.4  The Commissioner’s position is substantially                   
          justified if, based on all of the facts and circumstances and the           
          legal precedents relating to the case, the Commissioner acted               
          reasonably.  Pierce v. Underwood, 487 U.S. 552 (1988); Sher v.              
          Commissioner, 89 T.C. 79, 84 (1987), affd. 861 F.2d 131 (5th Cir.           
          1988).  In other words, to be substantially justified, the                  
          Commissioner’s position must have a reasonable basis in both law            
          and fact.  Pierce v. Underwood, supra; Rickel v. Commissioner,              
          900 F.2d 655, 665 (3d Cir. 1990), affg. in part and revg. in part           
          on other grounds 92 T.C. 510 (1989).  A position is substantially           
          justified if the position is “justified to a degree that could              
          satisfy a reasonable person”.  Pierce v. Underwood, supra at 565            
          (construing similar language in the Equal Access to Justice Act).           
          Thus, the Commissioner’s position may be incorrect but                      
          nevertheless be substantially justified “‘if a reasonable person            

               4  As discussed above, respondent also contends that                   
          petitioner did not exhaust administrative remedies and that                 
          petitioner unreasonably protracted the proceedings.  As a result            
          of our conclusion herein, we need not address respondent’s                  
          additional contentions.                                                     





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