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property law; that treatise noted the uncertainty as to whether
refiling was required under the statute establishing the marital
contract filing system. 16 Spaht & Hargrave, Louisiana Civil Law
Treatise, Matrimonial Regimes sec. 8.5. (West 2d ed. 1997).
In general, the Commissioner’s position is held to be
substantially justified when the underlying issue is one of first
impression. TKB Intern., Inc. v. United States, 995 F.2d 1460,
1468 (9th Cir. 1993); Estate of Wall v. Commissioner, 102 T.C.
391, 394 (1994). This is not a per se rule. See cases collected
in Nalle v. Commissioner, 55 F.3d at 192-193. However, the
instant case is not like any of the situations in the cases
collected in Nalle; rather, the instant case falls well into the
mainstream of first impression cases. The controlling statute is
not clear on its face, and the treatise that both sides cited
describes the statute as “ambiguous” on the issue that both sides
regarded as central. We conclude that a reasonable person could
regard the Commissioner’s position as a correct interpretation of
the Louisiana statute, and so we conclude that the Commissioner’s
position on this issue was substantially justified.
Sandra contends in her motion papers that
c). Even if a second filing had been required,
the Respondent still had no reasonable basis in fact or
in law to conclude that the “second filing” of the
Matrimonial Agreement in Jefferson Parish in 1991 was
not effective as to third parties. Hence, Petitioner’s
income is still her separate property.
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