Robert C. McKee and Valery W. McKee - Page 6

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          exhaust the administrative remedies available to them, and that             
          the costs petitioners claim are unreasonable.  In contrast,                 
          petitioners contend that they were the prevailing party with                
          respect to both the amount in controversy and the most                      
          significant issue or set of issues, that they exhausted all                 
          available administrative remedies, and that the amount of                   
          litigation costs sought is reasonable.                                      
               Section 7430(c)(4)(A) and (B)(i) provides that a taxpayer is           
          a prevailing party if (1) the Commissioner’s position in the                
          court proceeding was not substantially justified, (2) the                   
          taxpayer substantially prevailed with respect to the amount in              
          controversy or the most significant issue or set of issues, and             
          (3) the taxpayer meets the net worth requirements of 28 U.S.C.              
          section 2412(d)(2)(B) (2000).  See also sec. 301.7430-5(a),                 
          Proced. & Admin. Regs.  Although the taxpayer has the burden of             
          proving that the taxpayer meets requirements (2) and (3), 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 petitioners meet the net worth                
          requirement of 28 U.S.C. section 2412(d)(2)(B).  We first                   
          consider whether respondent’s position in the court proceeding              
          was substantially justified.                                                









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