Timothy J. Coburn - Page 9

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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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