- 9 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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