- 23 - costs. Their third approach relates to the deductibility of both those costs and the professional fees, and it posits that respondent’s concession in June of 2002 of both issues, almost 3 months after the issuance of CNN 2002-21 and 4 months after issuance of the ANPRM and Announcement 2002-9 (and some 3 years after the issuance of Rev. Rul. 99-23) was not timely. We consider each argument in turn. B. Effect of Respondent’s Litigating Against a Position Likely To Be Adopted in the Future Petitioners characterize the listing of “loan origination costs” as an item slated for 2000 IRS published guidance as a step that “evidences years of intensive, and ultimately successful, lobbying by the likes of the INDOPCO Coalition to impress its views on the IRS.” Petitioners appear to be suggesting that the selection of loan origination costs for 2000 published guidance was tantamount to an IRS decision, on March 21, 2000, to treat those costs as deductible in the taxable year incurred. Therefore, respondent was not substantially justified in seeking to capitalize petitioners’ loan origination/ acquisition costs in 2000, despite the subsequent 2001 decision of the Tax Court in Lychuk v. Commissioner, 116 T.C. 374 (2001), sustaining the Commissioner’s capitalization of those costs. We disagree. As noted supra, there is a rebuttable presumption of no substantial justification if respondent fails to follow his ownPage: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
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