Robert C. McKee and Valery W. McKee - Page 8

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          5(c)(1), Proced. & Admin. Regs.                                             
               Petitioners contend that respondent’s position in the answer           
          was not substantially justified because it was “patently                    
          incorrect or not adequately stated to be justified”.  In so                 
          arguing, petitioners rely on the following statements respondent            
          made in the answer:  (1) Respondent denied that the three errors            
          in the notice existed, and (2) respondent denied that certain               
          adjustments to petitioners’ income tax, which respondent                    
          eventually conceded, were incorrect.  In addition, petitioners              
          assert that Mr. Potter’s letter of August 9, 2002, had addressed            
          some of the adjustments that respondent later conceded.                     
          According to petitioners, respondent’s position in the answer was           
          not substantially justified because respondent had been                     
          “presented with undisputed contrary facts” beforehand.                      
               Although respondent ultimately conceded certain adjustments            
          to petitioners’ income taxes for 1999, 2000, and 2001, our focus            
          is on the information that respondent possessed at the time of              
          filing the answer.  Rosario v. Commissioner, supra.  The only               
          information petitioners had provided before respondent filed the            
          answer was the information contained in Mr. Potter’s letter.  In            
          the letter, Mr. Potter set forth petitioners’ disagreements with            
          respondent’s proposed adjustment but included no supporting                 
          documents or other proof of his assertions.  Respondent was not             
          required to concede the case on the basis of Mr. Potter’s letter            






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