- 41 -
(11th Cir. 1984) (Government’s conduct considered “reasonable”
and “substantially justified” where it took 11 months after the
taxpayer filed his complaint for Government counsel to obtain
from the IRS and review the relevant administrative files and,
after deciding to concede the Government’s case, an additional 40
days to obtain permission to concede from the IRS and the Review
Section of the Department of Justice); White v. United States,
740 F.2d 836, 842 (11th Cir. 1984) (Government’s concession of an
issue less than 3 months after taxpayer raised it in an amended
complaint considered “reasonable” behavior and, therefore,
“substantially justified”); Shifman v. Commissioner, T.C. Memo.
1987-347 (Government’s concession within 2 months after the
petition was filed considered “reasonable” thereby barring
taxpayer’s recovery of litigating costs under section 7430).16
16 Harrison v. Commissioner, 854 F.2d 263 (7th Cir. 1998),
affg. T.C. Memo. 1987-52 and Shifman v. Commissioner, T.C. Memo.
1987-347, were decided under sec. 7430 before it was amended by
the Tax Reform Act of 1986, Pub. L. 99-514, sec. 1551(d)(1), 100
Stat. 2752, to substitute “was not substantially justified” for
“was unreasonable” in describing a Government position that could
give rise to an award of reasonable litigation costs under that
provision. As we noted in Shifman v. Commissioner, supra at note
5: “this Court has previously held that the test of whether a
Government action is ‘substantially justified’ is essentially one
of reasonableness” (citing Baker v. Commissioner, 83 T.C. 822,
828 (1984)), vacated and remanded on another issue 787 F.2d 637
(D.C. Cir. 1986). Ashburn v. United States, 740 F.2d 843 (11th
Cir. 1984), and White v. United States, 740 F.2d 836 (11th Cir.
1984), were decided under the Equal Access to Justice Act (EAJA),
28 U.S.C. sec. 2412 (2000). A principal reason for the enactment
of sec. 7430 was to extend the relief afforded by EAJA to
proceedings in this Court so that “one set of rules * * * [would]
(continued...)
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