Dennis and Nancy Flynn - Page 17

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          1996-452, affd. 182 F.3d 275 (4th Cir. 1999); Gaw v.                        
          Commissioner, T.C. Memo. 1995-531.                                          
               Petitioners contend that respondent’s acceptance of                    
          petitioners’ amended 1994 return based on section 108 establishes           
          that petitioners should be excused from the late payment addition           
          for 1993.  We disagree.  Respondent’s acceptance of petitioners’            
          amended 1994 return, which reduced income for forgiveness of                
          indebtedness based on insolvency under section 108, may show that           
          petitioners were insolvent when a debt of theirs was discharged             
          in 1994, not that they could not pay tax on their 1993 income.              
               5.   Conclusion                                                        
               We conclude that respondent had a reasonable basis in both             
          fact and law on January 13, 2000, for concluding that petitioners           
          were liable for the late payment addition for 1993.  Thus,                  
          respondent's position in the administrative proceeding was                  
          substantially justified, and petitioners are not entitled to an             
          award of administrative costs under section 7430.                           
               To reflect the foregoing,                                              
                                                       Decision will be               
                                                  entered for respondent.             













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