John G. Goette, Jr. and Marian Goettee - Page 12

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         proceedings before the court respondent escalated the dispute by             
         indicating that petitioners owed almost $15,000 additional                   
         interest and that “This was respondent’s position when trial                 
         commenced”.   As petitioners note, this contention was raised                
         almost 2-1/2 years after the instant case was begun, was not                 
         embodied in any document filed with the Court, and was conceded              
         by respondent at the start of the trial (about 2 weeks after this            
         contention was raised), before the first witness was called to               
         the stand.  This contention arose and vanished, without becoming             
         a part of the case; it never became part of what petitioners                 
         asked this Court to require respondent to abate.  Under these                
         circumstances, we do not take this evanescent contention into                
         account in determining whether petitioners substantially                     
         prevailed as to the most significant issue or set of issues                  
         presented.                                                                   
              Petitioners prevailed to some extent.  They achieved some               
         success on the delay periods and some success on the error                   
         disputes.  However, these successes in the aggregate were barely             
         more than trivial compared to petitioners’ failures in the                   
         litigation.  As to the delay periods, petitioners prevailed with             
         respect to 3 months, and respondent prevailed with respect to 15-            
         3/4 months.  Goettee I, issue I; Goettee v. Commissioner, T.C.               
         Memo. 2004-9, issues 2, 3, 4, and 5.  As to the major errors                 
         disputes, petitioners prevailed on one starting date; respondent             






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