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could think it correct’”. Maggie Mgmt. Co. v. Commissioner, 108
T.C. 430, 443 (1997) (quoting Pierce v. Underwood, supra at 566
n.2).
The relevant inquiry is “whether * * * [the Commissioner]
knew or should have known that * * * [his] position was invalid
at the onset”. Nalle v. Commissioner, 55 F.3d 189, 191 (5th Cir.
1995), affg. T.C. Memo. 1994-182. We look to whether the
Commissioner’s position was reasonable, in light of and subject
to the available facts and circumstances at the time that the
Commissioner took his position. Maggie Mgmt. Co. v.
Commissioner, supra at 443; DeVenney v. Commissioner, 85 T.C.
927, 930 (1985).
The fact that the Commissioner eventually concedes, or even
loses, a case does not establish that his position was
unreasonable. Estate of Perry v. Commissioner, 931 F.2d 1044,
1046 (5th Cir. 1991); Sokol v. Commissioner, 92 T.C. 760, 767
(1989). However, the Commissioner’s concession does remain a
factor to be considered. Powers v. Commissioner, 100 T.C. 457,
471 (1993), affd. in part, revd. in part and remanded on another
issue 43 F.3d 172 (5th Cir. 1995).
As relevant herein, the position of the United States that
must be examined against the substantial justification standard
with respect to the recovery of litigation costs is the position
taken by the Commissioner in the answer to the petition. Sher v.
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