Michael J. Downing and Sandra M. Downing - Page 13

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          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 result             




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