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treat those rulings as concessions in cases before us).4
Nonetheless, in Vines I, we did not decide the issue of the
validity of Rev. Proc. 99-17, supra, and we need not do so now.5
Petitioner also contends that, despite being an issue of
first impression, respondent’s position cannot be considered
substantially justified because respondent “ignored” the language
of section 301.9100-3, Proced. & Admin. Regs., which commands
relief where the taxpayer acts reasonably and in good faith and
the interests of the Government will not be prejudiced. We
disagree. As we noted in Vines v. Commissioner, 126 T.C. at 289:
“the interpretation of section 301.9100-3, Proced. & Admin.
Regs., and the parties’ arguments regarding section 9100 relief
create an issue of first impression in this Court.” Although we
disagreed with respondent’s interpretation of the regulation and
whether relief was warranted under the facts of the instant case,
4Indeed, there is a rebuttable presumption that the
Commissioner’s position is not substantially justified if the
Commissioner fails to follow his own applicable published
guidance, including: Regulations, revenue rulings, and revenue
procedures. Sec. 7430(c)(4)(B)(ii), (iv). In the instant case
respondent relied upon Rev. Proc. 99-17, 1999-1 C.B. 503.
Respondent also relied upon respondent’s interpretation of sec.
301.9100-3, Proced. & Admin. Regs. In Vines I, we however,
disagreed with respondent’s interpretation of that regulation in
deciding an issue of first impression before this Court.
5We note that the taxpayer in Zinniel v. Commissioner, 89
T.C. 357 (1987) also filed a motion for litigation costs and
attorney’s fees, which we denied. See Zinniel v. Commissioner,
883 F.2d 1350 (7th Cir. 1989), affg. an order of this Court
denying the taxpayer’s motion for litigation costs and attorney’s
fees.
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