Florida Country Clubs, Inc. - Page 15

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          supra.9  The TBOR 2 amendment to section 7430(c)(4) is consistent           
          with the congressional intent of immunizing the Government                  
          against claims for costs until the IRS’s position has                       
          crystallized in an Appeals Office decision or notice of                     
          deficiency.                                                                 
          II. The Parties’ Arguments                                                  
               Respondent maintains that since no Appeals Office decision             
          or notice of deficiency was ever issued to petitioners,                     
          petitioners do not qualify as “prevailing parties” for purposes             
          of section 7430(c)(4) and cannot recover administrative costs.10            
          In response, petitioners assert that respondent did take a                  
          “position”.  Respondent’s position was manifested in:  (1) The              

               9 Sec. 7430(c)(7) serves to protect the IRS from liability             
          before the Appeals Office gets involved.  The Appeals Office is             
          the forum for the compromise of disputes between taxpayers and              
          the IRS, and it is the first stage within the IRS at which the              
          proposed adjustments are fully reviewed and which expressly takes           
          into account the hazards of litigation.                                     
               10  We disagree with respondent that Estate of Gillespie v.            
          Commissioner, 103 T.C. 395 (1994), and Belshee v. Commissioner,             
          T.C. Memo. 1999-380, establish that petitioners are not entitled            
          to recover costs prior to the issuance of a notice of deficiency            
          or an Appeals Office decision.  These cases denied the taxpayers’           
          requests to recover costs on the grounds that such costs were not           
          incurred during a period for which recovery was permitted under             
          sec. 7430(c)(2).  These cases did not address whether the                   
          taxpayers were prevailing parties under subsec. (c)(4).                     
          Furthermore, these cases were decided on the basis of sec.                  
          7430(c)(2) before it was amended by RRA 1998 to allow taxpayers             
          to recover costs incurred on or after the date of mailing of the            
          first letter of proposed deficiency.  Because we interpret sec.             
          7430(c)(2) in light of its amendment by RRA 1998, the logic of              
          Estate of Gillespie and Belshee is not dispositive of whether               
          petitioners are entitled to recover administrative costs.                   





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