- 9 - centered on the taxation of the Roth IRA distributions. We therefore limit our discussion to this issue.3 To decide whether the Commissioner’s position was substantially justified, we first identify the point in time at which the United States is considered to have taken a position and then decide whether the position taken from that date forward was substantially justified. Maggie Mgmt. Co. v. Commissioner, 108 T.C. 430, 442 (1997). The fact that the Commissioner eventually concedes or loses a case does not establish that his position was not substantially justified. Estate of Perry v. Commissioner, 931 F.2d 1044, 1046 (5th Cir. 1991); Corkrey v. Commissioner, 115 T.C. 366, 373 (2000). However, the Commissioner’s concession is a factor to be considered. Estate of Perry v. Commissioner, supra. In general, we bifurcate our analysis and look separately at the dates that the Government took a position in the administrative proceeding and in the proceeding in this Court. Sec. 7430(c)(7)(A) and (B); Huffman v. Commissioner, 978 F.2d 3 In his objection, respondent contends that the petition did not make clear whether petitioners were also contesting the other adjustments in the notice of deficiency because “the petition alleged nothing with respect to [those] adjustments”. The Appeals Case Memorandum states, however, that petitioners are “not disputing these issues, as they are di minimus [sic] and the real issue is the Roth [IRA] distribution.” Furthermore, we have repeatedly held that issues not raised in the petition are deemed to be conceded. See Nicklaus v. Commissioner, 117 T.C. 117, 120 n.4 (2001); Evan v. Commissioner, T.C. Memo. 2004-180 n.1.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 NextLast modified: November 10, 2007