Kenneth C. Rathbun, et al. - Page 11

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               We disagree with petitioners’ interpretation of the December           
          1995 letter.  Petitioners mistakenly equate an evaluation of the            
          issues in controversy and release of jurisdiction with a final              
          determination.  The letter’s content does not point to a final              
          determination as required by section 301.7430-3(c)(2), Proced. &            
          Admin. Regs.  The letter merely served to notify petitioners that           
          AO Rawley had finished his consideration and that respondent’s              
          District Director would take further action.  Moreover, in                  
          December of 1995, respondent had yet to even include the Rathbun            
          children in his examination.  Since respondent failed to reach a            
          final determination, the cases were returned to the Appeals                 
          Office following issuance of additional 30-day letters.                     
               For this reason, we conclude that the December 1995 letter             
          was not an IRS Appeals Office notice of decision.  In light of              
          our conclusion that petitioners never received a notice of                  
          decision, it is unnecessary for us to discuss whether petitioners           
          substantially prevailed in their administrative proceedings.                
          IV.  Conclusion                                                             
               Respondent did not take a position in petitioners’ cases               
          because the December 1995 letter was not an Appeals Office notice           
          of decision.  Given that respondent never took a position for               
          purposes of section 7430(c)(4), petitioners are not “prevailing             
          parties” entitled to administrative costs under section 7430, and           
          we so hold.                                                                 






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