- 8 - that the taxpayer meets requirements (1) and (2), supra, the Commissioner must show that the Commissioner’s position was substantially justified. See sec. 7430(c)(4)(B)(i); Rule 232(e). Respondent concedes that petitioner did not unreasonably protract the court proceeding and that petitioner meets the net worth requirement of 28 U.S.C. section 2412(d)(2)(B). In addition, respondent does not dispute that petitioner substantially prevailed with respect to the amount in controversy. Respondent alleges, however, that respondent’s position was substantially justified, that petitioner did not exhaust the administrative remedies available to him, and that the costs petitioner claims are unreasonable. A. Whether Respondent’s Position Was Substantially Justified For purposes of deciding a motion for reasonable litigation costs, section 7430(c)(7)(A) defines the Commissioner’s “position” as the position taken in the court proceeding. In the present case, respondent took a position when respondent filed an answer to petitioner’s petition. See Huffman v. Commissioner, 978 F.2d 1139, 1148 (9th Cir. 1992), affg. in part, revg. in part and remanding T.C. Memo. 1991-144; Maggie Mgmt. Co. v. Commissioner, 108 T.C. 430, 442 (1997). The Commissioner’s position is substantially justified if it has a reasonable basis in both fact and law and is justified to a degree that could satisfy a reasonable person. Huffman v.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: May 25, 2011