Florida Country Clubs, Inc. - Page 10

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          to be substantially justified under section 7430(c)(4)(B).                  
          Accordingly, respondent contends, petitioners cannot qualify as a           
          prevailing party under section 7430(c)(4) and cannot therefore              
          recover administrative costs.                                               
               Respondent’s contention presupposes, of course, that before            
          a taxpayer can qualify as a “prevailing party” under section                
          7430(c)(4), the Government must take a position as defined in               
          section 7430(c)(7), i.e., issue a notice of deficiency or an                
          Appeals Office decision.  This is the first time we are asked to            
          determine this issue since section 7430(c)(4) was amended by TBOR           
          2 in 1996, and we turn to it now.                                           
               A.   Pre TBOR 2 Section 7430(c)(4)                                     
               Prior to the TBOR 2 amendment to section 7430(c)(4), the               
          taxpayer had to substantially prevail and, in addition, had the             
          burden of establishing that the “position of the United States”             
          in the proceedings was not substantially justified.7  If the                

               7  Prior to the TBOR 2 amendment, sec. 7430(c)(4) read, in             
          relevant part, as follows:                                                  
               SEC. 7430(c)(4).  Prevailing Party.--                                  
                    (A) In General.–-The term “prevailing party”                      
               means any party in any proceeding to which                             
               subsection (a) applies (other than the United                          
               States or any creditor of the taxpayer involved)--                     
                         (i) which establishes that the position of the               
                    United States in the proceeding was not substantially             
                    justified,                                                        
                                                             (continued...)           





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