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unreasonable. Estate of Perry v. Commissioner, 931 F.2d 1044,
1046 (5th Cir. 1991); Swanson v. Commissioner, 106 T.C. 76, 94
(1996); Sokol v. Commissioner, 92 T.C. 760, 767 (1989). It
remains, however, a factor to be considered. Estate of Perry v.
Commissioner, supra; Powers v. Commissioner, 100 T.C. 457, 471
(1993), affd. in part, revd. in part and remanded on another
issue 43 F.3d 172 (5th Cir. 1995).
The position of the United States that must be examined in
light of the substantial justification standard with respect to
the recovery of litigation costs is the position taken by the
Commissioner in the answer to the petition. See Huffman v.
Commissioner, supra at 1148; Bertolino v. Commissioner, 930 F.2d
759, 761 (9th Cir. 1991). In this case, no answer was filed
since an answer is not generally required in a small tax case.
See Rule 173(b).
Respondent’s position has not changed between the issuance
of the notice of deficiency and the time petitioner partially
substantiated her claims. It is appropriate to look at the
position maintained by respondent during the pendency of the
case. See sec. 7430(c)(7)(A).
Reasonable Basis in Fact
Petitioner claims that respondent’s position is unreasonable
because: (1) Petitioner was not given an opportunity during the
audit to present documentation that would substantiate her cost
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