Barbara A. Owen - Page 14

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          substantially justified.  See also sec. 301.7430-5(a), Proced. &            
          Admin. Regs.  Although the taxpayer has the burden of proving               
          that the taxpayer meets requirements (1) and (2), supra, the                
          Commissioner must show that the Commissioner’s position was                 
          substantially justified.  See sec. 7430(c)(4)(B)(i); Rule 232(e).           
               Respondent concedes that petitioner exhausted the available            
          administrative remedies as required by section 7430(b)(1), that             
          petitioner did not unreasonably protract the administrative or              
          court proceedings as required by section 7430(b)(3), and that               
          petitioner meets the net worth requirement of 28 U.S.C. section             
          2412(d)(2)(B).  In addition, respondent does not dispute that               
          petitioner substantially prevailed with respect to the amount in            
          controversy.  Respondent argues, however, that petitioner is not            
          the prevailing party because respondent’s position in the                   
          administrative and judicial proceedings was substantially                   
          justified and that the costs petitioner claims are unreasonable.            
          A. Whether Respondent’s Administrative and Litigation Positions             
               Were Substantially Justified                                           
               For purposes of deciding a motion for reasonable                       
          administrative costs, an administrative proceeding is a procedure           
          or action before the Internal Revenue Service (the Service), sec.           
          7430(c)(5), and the “position of the United States” in an                   
          administrative proceeding refers to the position taken by the               
          Service as of the earlier of (i) the date the taxpayer receives             
          the notice of decision of the Internal Revenue Service Office of            





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