Michael J. Downing and Sandra M. Downing - Page 19

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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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