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that constitute “applicable published guidance” for purposes of
establishing a rebuttable presumption of “no justification” under
section 7430(c)(4)(B)(ii). Proposed regulations are not included
in that list. As an “advance notice of proposed rulemaking”,
both the ANPRM and Announcement 2002-9 are no more than “advance
notice” of a future issuance (proposed regulations) that, when
issued, will not constitute “applicable published guidance”.
Therefore, it is not clear that such pronouncements can, under
any circumstances, constitute “applicable published guidance”.
It is not necessary to resolve that issue in this case, however,
because the ANPRM and Announcement 2002-9 do not constitute
“guidance” in any sense of that term. They merely suggest
principles of expense capitalization or deductibility that may be
adopted in the future. They do not purport to change existing
administrative positions. Therefore, they did not negate the
authorities under the then existing law (discussed supra) that
render respondent’s litigating position with respect to loan
origination/acquisition costs and professional fees substantially
justified.
Moreover, we find no inequity or impropriety in respondent’s
decision, reflected in the LMSB-SB/SE memorandum, to capitalize
selectively expenses that otherwise would be deductible under the
12-month rule, if and when adopted, in order to accomplish an
“efficient utilization of * * * resources”. The IRS is not
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