Daniel R. Allemeier, Jr. - Page 7

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          substantially justified in arguing that the MBA program                     
          constituted a minimum educational requirement.  See Allemeier v.            
          Commissioner, T.C. Memo. 2005-207.  Similarly, although we found            
          that petitioner’s MBA “enhanced” his preexisting skills rather              
          than qualified him to perform “significantly” different tasks and           
          activities, we find that respondent was substantially justified             
          in arguing that petitioner’s course of study qualified him for a            
          new trade or business.  Id.                                                 
               Accordingly, we find that respondent’s position was                    
          substantially justified.6  Petitioner is therefore not the                  
          prevailing party and may not recover any litigation costs.  See             
          sec. 7430(c)(4)(B).  In light of this holding, we need not decide           
          whether petitioner exhausted administrative remedies or whether             
          the legal costs petitioner claimed are reasonable.7  See, e.g.,             
          Kean v. Commissioner, T.C. Memo. 2003-275, affd. 407 F.3d 186 (3d           
          Cir. 2005); Gutierrez v. Commissioner, T.C. Memo. 1995-569 (where           


               6For similar reasons, we also conclude that respondent’s               
          position regarding the accuracy-related penalty was substantially           
          justified.  See Uddo v. Commissioner, T.C. Memo. 1998-276.                  
               7We note that petitioner submitted a $15,553 billing                   
          statement for litigation costs from his father, a non-tax                   
          attorney who entered no appearance in this proceeding and is                
          ineligible to practice before the Court, but petitioner made no             
          showing that he actually paid or was legally obligated to pay the           
          fees to his father.  See sec. 7430(a)(2), (c)(1)(B)(iii); Frisch            
          v. Commissioner, 87 T.C. 838, 846 (1986) (taxpayer not eligible             
          to recover fees when taxpayer had no liability for the fees);               
          Republic Plaza Props. Pship. v. Commissioner, T.C. Memo. 1997-              
          239.                                                                        





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