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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 given 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 administrative costs is the
position taken by the Commissioner as of the date of the notice
of deficiency. Sec. 7430(c)(7)(B)(ii). 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. Bertolino v. Commissioner, 930 F.2d 759, 761 (9th
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