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Commissioner, 861 F.2d 131, 134-135 (5th Cir. 1988); see sec.
7430(c)(7)(A). In the present case, respondent did not file an
answer to the petition,5 but we note that respondent’s position
was essentially the same in the administrative and litigation
proceedings.6 More specifically, respondent’s position was that
petitioner was not entitled to the head-of-household filing
status, the earned income credit, and two dependency exemption
deductions.
Considering all the facts and circumstances, respondent did
not know and could not have known that his position was invalid
after the petition was filed. Petitioner’s marital status and
the amount of support he provided to his children for the 1999
taxable year were unknown to respondent. See secs. 2(b), 32,
151, 152. On at least eight separate occasions, respondent
requested that petitioner provide documents to substantiate such
5 Rule 175(b) provides generally that no answer is required
where a petition is filed pursuant to sec. 7463.
6 The motion filed by petitioner seeks only the recovery of
litigation costs and not that of reasonable administrative costs.
If petitioner had sought to recover such costs, then we would
review the Commissioner’s position as of the date of the notice
of deficiency to determine whether he was substantially justified
with respect to the recovery of administrative costs. See sec.
7430(c)(7)(B). In the present case, respondent received
information from petitioner in a letter dated Sept. 27, 2000,
before the issuance of the notice of deficiency dated Dec. 11,
2000. However, the information provided by petitioner was
insufficient to invalidate respondent’s position. Accordingly,
petitioner would not be entitled to recovery of reasonable
administrative costs.
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