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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.
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