- 31 - 2. Substantial Justification Analysis We turn now to the issue of whether respondent’s position, as identified above, was substantially justified.28 A position of the United States in a judicial proceeding is substantially justified if it has a reasonable basis in law and fact. E.g., Maggie Mgmt. Co. v. Commissioner, supra at 443. Common sense dictates that if the Government was able to prevail at trial (only to lose on appeal), its position ordinarily will have been reasonable. See H. Rept. 97-404, at 15 (1981) (stating that in such situation “the appellate court would not normally award attorney’s fees to the taxpayer since the trial court, by definition, had found the government’s position to be reasonable”); S. Comm. on Fin., Technical Explanation of Committee Amendment, 127 Cong. Rec. 32070, 32078 (1981) (same); see also Ness v. Commissioner, 73 AFTR 2d 94-1195, at 94-1196 (9th Cir. 1994) (fact that the Commissioner prevailed in the Tax Court, while “not dispositive”, is “significant”). On the other 28 In the case of proceedings commenced after July 30, 1996, the Government bears the burden of establishing that its position was substantially justified. Sec. 7430(c)(4)(B)(i); see Taxpayer Bill of Rights 2, Pub. L. 104-168, sec. 701(d), 110 Stat. 1463 (1996). In the case of proceedings commenced on or before that date, the taxpayer bears the burden of establishing that the Government’s position was not substantially justified. Sec. 7430(c)(4)(A)(i), prior to amendment by the Taxpayer Bill of Rights 2, supra. The parties apparently assume that the current rule applies to these cases. While our resolution of the substantial justification issue would be the same regardless of which rule applies, we are of the view that the relevant “proceedings” commenced prior to July 30, 1996. Cf. supra note 19.Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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