- 13 - requirements (subpars. (A)(ii) and (D)(ii) of sec. 7430(c)(4)). Respondent contends that (1) Sandra is not “the prevailing party” because respondent’s position “was substantially justified” (sec. 7430(c)(4)(B)(i)), (2) the amount of costs Sandra claims is not reasonable (pars. (1) and (2) of sec. 7430(c)), and (3) Sandra “unreasonably protracted” the proceedings (sec. 7430(b)(3)). We consider first whether respondent’s position was substantially justified, then whether Sandra unreasonably protracted the proceedings, and then the proper allocation of allowable costs. Finally, we consider whether Sandra is allowed a recovery of any amount under the “qualified offer” provisions. B. Substantially Justified To recover costs from respondent, Sandra must establish she is the “prevailing party” within the meaning of section 7430(c)(4). (As we noted in Downing I note 31, section 7491, which shifts the burden of proof to the Commissioner if the taxpayer meets certain conditions, does not apply in the instant case because the examination of petitioners’ tax returns began before the effective date of section 7491.) Under section 7430(c)(4)(B)(i), Sandra shall not be treated as having satisfied the prevailing party requirement if respondent “establishes that the position of the United States in the proceeding was substantially justified.” (Although the overall burden of proof as to “prevailing party” is on Sandra, the burden of proof on the “substantially justified” element is on respondent, as a resultPage: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
Last modified: May 25, 2011