Michael J. Downing and Sandra M. Downing - Page 10

                                       - 10 -                                         


               4(...continued)                                                        
                              of the 1st sentence of section                          
                              2412(d)(1)(B) of title 28, United States                
                              Code * * *                                              
                              (B) Exception if United States establishes              
                         that its position was substantially justified.--             
                              (i) General rule.–-A party shall                        
                              not be treated as the prevailing party                  
                              in a proceeding to which subsection (a)                 
                              applies if the United States establishes                
                              that the position of the United States                  
                              in the proceeding was substantially                     
                              justified.                                              
                         *      *      *      *      *      *      *                  
                              (C)  Determination as to prevailing party.–-            
                         Any determination under this paragraph as to                 
                         whether a party is a prevailing party shall be               
                         made by agreement of the parties or–-                        
                         *      *      *      *      *      *      *                  
                              (ii) in the case where such final                       
                              determination is made by a court, the court.            
                         *      *      *      *      *      *      *                  
                              (E) Special rules where judgment less than              
                         taxpayer’s offer.--                                          
                                  (i)  In general.–-A party to a court               
                              proceeding * * * shall be treated as the                
                              prevailing party if the liability of the                
                              taxpayer pursuant to the judgment in the                
                              proceeding (determined without regard to                
                              interest) is equal to or less than the                  
                              liability of the taxpayer which would have              
                              been so determined if the United States had             
                              accepted a qualified offer of the party under           
                              subsection (g).                                         
                         *      *      *      *      *      *      *                  
                                                             (continued...)           





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