Richard Edwin and Eva Ruth Elder - Page 9




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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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