Florida Country Clubs, Inc. - Page 9

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          party, however, if the Government establishes that “the position            
          of the United States” was substantially justified.  See sec.                
          7430(c)(4)(B).  The “position of the United States” is, in turn,            
          defined in section 7430(c)(7) as the position taken by the                  
          Government in an administrative proceeding as of the earlier of:            
          (1) The date of receipt by the taxpayer of the notice of decision           
          of the Appeals Office, or (2) the date of the notice of                     
          deficiency.  Thus, prior to the issuance of a notice of                     
          deficiency or an Appeals Office decision, the Government is not             
          considered as having taken any position.  See, e.g., Richardson             
          v. Commissioner, T.C. Memo. 1991-427 (“we cannot consider the               
          conduct of the revenue agent prior to * * *  [date of notice of             
          deficiency].”);  Nathaniel v. United States, 69 AFTR 2d 456, 92-1           
          USTC par. 50,023 (E.D. Cal. 1991) ("The plain language of section           
          7430(c)(7) precludes the court from considering the position                
          taken by the United States in the administrative proceedings * *            
          * [prior to] the date of a notice of deficiency or the date of              
          the receipt by the taxpayer of a notice of a decision of the                
          Office of Appeals").                                                        
               Respondent argues that because no notice of deficiency or              
          Appeals Office decision was ever issued to petitioners, no                  
          “position of the United States” had been taken that can be shown            

               6(...continued)                                                        
                    that the position of the United States in the                     
                    proceeding was substantially justified.                           





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