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“applicable published guidance in the administrative proceeding”.
Sec. 7430(c)(4)(B)(ii). The term “applicable published guidance”
is defined to mean “regulations, revenue rulings, revenue
procedures, information releases, notices, and announcements,”
and, if issued to the taxpayer, “private letter rulings,
technical advice memoranda, and determination letters.” Sec.
7430(c)(4)(B)(iv); see also Rauenhorst v. Commissioner, 119 T.C.
157, 170-171 (2002), wherein we refused “to allow * * * [the
Commissioner’s] counsel to argue the legal principles of * * *
[court] opinions against the principles and public guidance
articulated in the Commissioner’s currently outstanding revenue
rulings.”
The 2000 Priority Guidance Plan does not constitute
“applicable published guidance” that would trigger a rebuttable
presumption of no substantial justification pursuant to section
7430(c)(4)(B)(ii) because it is not among the IRS pronouncements
listed in section 7430(c)(4)(B)(iv). And because it was not a
revenue ruling (or guidance of comparable stature), it did not,
under Rauenhorst, prohibit respondent from litigating to require
the capitalization of loan origination/acquisition costs. More
fundamentally, the 2000 Priority Guidance Plan is not the type of
“guidance” contemplated by either section 7430(c)(4)(B)(ii) or
Rauenhorst. It is, on its face, no more that an informal
announcement of anticipated “guidance projects” that “may be
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