James E. Blasius and Mary Jo Blasius, et al. - Page 23

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          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 own             





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