Jennifer L. Rusley - Page 12




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          customers.”  The third letter does not establish that petitioner            
          performed all or substantially all her services off the premises            
          of her employer and does not explain whether petitioner was paid            
          by salary or commission or some combination of the two.  The                
          letter says nothing about the extent and nature of supervision of           
          petitioner in her work for Arch Wireless.  The third letter                 
          simply does not establish whether petitioner was a common law               
          employee or was a statutory employee during 1998.                           
               We conclude that respondent had a reasonable basis in fact             
          and law for the position taken in the notice of deficiency.  At             
          the time of the issuance of the notice of deficiency, petitioner            
          had not established her status as a statutory employee entitling            
          her to report her business expense deductions on Schedule C.  The           
          fourth letter that petitioner ultimately presented to respondent            
          confirmed the details that formed the basis of respondent’s                 
          concession to settle this matter.  Petitioner did not present the           
          fourth letter until after respondent issued the notice of                   
          deficiency.  Therefore, under the circumstances of this case                
          respondent’s position was substantially justified.  Petitioner is           
          not the prevailing party under section 7430 and is not entitled             
          to an award of administrative costs.                                        












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