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the immovable property of Mr. Downing [i.e., the house
Michael bought in 1991 and the house he bought in 1995] that was
located in Jefferson Parish.”
We believe petitioners got it right in their posttrial
answering brief--the 1991 and 1995 filings protected Michael’s
immovables. However, if respondent’s position as to the effect
on movables of the 1989 filing was reasonable (and we have
concluded that it was), then nothing in the record causes us to
conclude that the 1991 filing or 1995 filing--each of which was
only an immovables filing--would settle the matter so that
respondent’s overall position would become unreasonable. The
statute in question--La. Civ. Code Ann. art. 2332 (West 1985)--
does not state whether an immovables filing can serve also as a
movables filing. The parties have not led us to any caselaw or
treatise discussion of the matter. Whatever the answer may turn
out to be under Louisiana law, we are satisfied that on this
record the Commissioner’s position in the litigation as to
marriage contract filings was substantially justified.
We hold for respondent on this issue.8
8 Under these circumstances, we do not rule on respondent’s
contention that respondent’s position was reasonable in order to
avoid a possible “whipsaw”. We note that the instant case does
not fit into the usual whipsaw setting, in which the Commissioner
takes inconsistent positions because the taxpayers involved in
the same transaction take inconsistent positions, or the
Commissioner reasonably foresees that the taxpayers may take
inconsistent positions. See, e.g., Sherbo v. Commissioner, 255
F.3d 650 (8th Cir. 2001), affg. T.C. Memo. 1999-367; Maggie
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