James E. Blasius and Mary Jo Blasius, et al. - Page 20

                                       - 20 -                                         
          2000), and Wells Fargo & Co. and Subs. v. Commissioner, 224 F.3d            
          874 (8th Cir. 2000), in determining whether respondent’s present            
          position seeking to capitalize ACC’s loan origination/acquisition           
          costs and professional fees was substantially justified.                    
          Petitioners argue that respondent was not substantially justified           
          in litigating his position before “finally conceding” after “two            
          years had past [sic] since the PNC and Wells Fargo circuit court            
          decisions.”                                                                 
               (3) Because respondent did not concede the loan                        
          origination/acquisition costs and professional fees issues until            
          June 10, 2002, which was months after the issuance of the ANPRM,            
          Announcement 2002-9, 2002-1 C.B. 536, and CCN 2002-21, and years            
          after the issuance of Rev. Rul. 99-23, 1999-1 C.B. 998,13                   
          respondent “did not follow * * * [his] own published guidance,              
          [and, therefore, he] must meet a higher standard of proof to                
          rebut the presumption [of no justification] created by * * *                
          [section] 7430(c)(4)(B)(ii) * * * [, which he] has not met”.                
               B.  Respondent’s Arguments                                             
               1.  Loan Origination/Acquisition Costs                                 
               Capitalization is substantially justified by the Court’s               
          decision in Lychuk v. Commissioner, supra, which upheld the                 
          Commissioner’s capitalization of costs identical to those at                
          issue in the consolidated cases; i.e., employee salaries and                

               13  See supra note 11.                                                 





Page:  Previous  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  Next

Last modified: May 25, 2011