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nonrecourse, respondent’s position in the answer was not based on
the fact now alleged in respondent’s response to the instant
motion that the loan documents on their face provide for a
recourse liability. Respondent’s answer did not address the
issue of whether the liability was recourse or nonrecourse. Even
though respondent’s trial memorandum took the position that the
liability was nonrecourse, respondent’s opening brief contended
that the Federal income tax result in the instant case does not
depend on whether the loan is recourse or nonrecourse.7 Clearly,
as we noted in Coburn I, respondent has not been of one mind
concerning the facts of the instant case. In deciding whether
respondent’s position was substantially justified, we will not
consider the fact now alleged in respondent’s response to the
instant motion, that the loan documents on their face provided
for a recourse liability. See id.
With respect to the “unique relationship” of petitioner and
CareMatrix now alleged by respondent, we understand respondent to
contend that CareMatrix discharged the liability on account of
either mutual interests with petitioner or sympathy for him. We
recognize that the facts demonstrate the existence of an
interrelationship among petitioner, CareMatrix, and PhyMatrix:
7Although respondent contended that the Federal income tax
result in the instant case does not depend on whether the
liability is recourse or nonrecourse, respondent’s opening brief
disputed petitioner’s contention that the liability was
nonrecourse.
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