James E. Blasius and Mary Jo Blasius, et al. - Page 17

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          Section 7430(c)(4)(B) provides that a taxpayer shall not be                 
          treated as the prevailing party in any proceeding if the United             
          States establishes that its position in the proceeding was                  
          substantially justified.  See sec. 7430(c)(4)(B)(i).  The                   
          position of the United States in an administrative proceeding is            
          established as of the earlier of (1) the date the taxpayer                  
          receives notice of a decision of the IRS Office of Appeals, or              
          (2) the date of the notice of deficiency.  Sec. 7430(c)(7)(B).              
          The position of the United States in a deficiency proceeding in             
          this Court is that set forth in the Commissioner’s answer.  E.g.,           
          Maggie Mgmt. Co. v. Commissioner, 108 T.C. 430, 442 (1997); see             
          sec. 7430(c)(7)(A).                                                         
               B.  Substantial Justification                                          
               For purposes of section 7430, a position of the United                 
          States is substantially justified if it has a reasonable basis in           
          both law and fact.  E.g., Maggie Mgmt. Co. v. Commissioner, supra           
          at 443.  The determination of the reasonableness of that position           
          is based upon the available facts that formed the basis for the             
          position, as well as any controlling legal precedent.  Id.  The             
          inquiry is not a static one; that is, a position of the United              
          States that was reasonable when established may become                      
          unreasonable in light of changed circumstances.  See, e.g., Wasie           
          v. Commissioner, 86 T.C. 962, 969 (1986); see also sec. 301.7430-           
          5(c)(2), Proced. & Admin. Regs. (any award of administrative                






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