Scott and Soraya Malowney - Page 4

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          T.C. 430, 442 (1997) (citing Huffman v. Commissioner, 978 F.2d              
          1139, 1147 (9th Cir. 1992), affg. in part, revg. in part and                
          remanding T.C. Memo. 1991-144).                                             
               On the date respondent issued the notice of deficiency and             
          after filing his answer, respondent maintained the position that            
          petitioners were not, in 1999, in the business of refurbishing or           
          selling real estate.  As a result, respondent contends that                 
          petitioners’ “house should have been treated as investment                  
          property and the loss from the sale should have been treated as a           
          capital loss.”  Indeed, in previous years, petitioners claimed,             
          but subsequently acquiesced to respondent’s disallowance of,                
          certain reported business expenses.  Thus, respondent’s position            
          was substantially justified and reasonable based upon the                   
          information available to him at the time he took a position in              
          the administrative and judicial proceedings.  The fact that                 
          petitioners established at trial that they were engaged in a                
          trade or business does not diminish the reasonableness of                   
          respondent’s position.  See Wasie v. Commissioner, 86 T.C. 962,             
          969 (1986).                                                                 
               The second basis for respondent’s objection to petitioners’            
          motion to recover litigation costs is that petitioners failed to            
          provide a detailed affidavit setting forth the nature and amount            
          of each cost.  A motion for award of costs must be accompanied by           
          a “detailed affidavit * * * which sets forth distinctly the                 
          nature and amount of each item of costs for which an award is               




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