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2. Reasonableness
Respondent argues that his position is substantially
justified because the facts gathered during examination and the
law, taken together, indicate petitioner had improperly
classified its instructors as independent contractors.
Respondent further contends that petitioner did not provide all
relevant legal arguments that its instructors were independent
contractors, not employees. Before we address whether
respondent’s position was reasonable, the parties dispute whether
the Appeals officer’s determination is relevant to the
reasonableness of respondent’s position.
a. Whether the Appeals Officer’s Determination Is
Relevant to the Reasonableness of Respondent’s
Litigating Position
Respondent urges the Court to review the examining agent’s
report as the basis for the position taken in the answer, but to
not consider the Appeals officer’s analysis. Petitioner argues
that the Appeals transmittal and case memo is relevant in
deciding whether respondent’s position was reasonable. The
record establishes that respondent’s examining agent had the
relevant facts in her possession before the notice of
determination was issued. This is significant since the common
law factors and section 530 relief are both fact-intensive
inquiries. Thus, we find that the Appeals officer’s analysis is
a written document recapitulating the relevant facts of this case
and is relevant.
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