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Estate of Perry v. Commissioner, 931 F.2d 1044, 1046 (5th Cir.
1991); Sokol v. Commissioner, 92 T.C. 760, 767 (1989). However,
the Commissioner’s concession is a factor to be considered.
Powers v. Commissioner, 100 T.C. 457, 471 (1993), affd. in part,
revd. in part and remanded on another issue 43 F.3d 172 (5th Cir.
1995).
As relevant here, the position of the United States under
consideration with respect to the recovery of administrative
costs is the position taken by the Commissioner as of the date of
the notice of deficiency. Sec. 7430(c)(7)(B)(ii); Fla. Country
Clubs, Inc. v. Commissioner, 122 T.C. 73 (2004), affd. 404 F.3d
1291 (11th Cir. 2005). The position of the United States under
consideration with respect to the recovery of litigation costs is
the position taken by the Commissioner in the answer to the
petition. Bertolino v. Commissioner, 930 F.2d 759, 761 (9th Cir.
1991); Sher v. Commissioner, 861 F.2d at 134-135; see sec.
7430(c)(7)(A). Ordinarily, we consider the reasonableness of
each of these positions separately in order to account for a
change in the Commissioner’s position. Maggie Mgmt. Co. v.
Commissioner, supra at 442 (citing Huffman v. Commissioner, 978
F.2d 1139, 1144-1147 (9th Cir. 1992), affg. in part and revg. in
part on other grounds T.C. Memo. 1991-144). In the present case,
however, we need not follow this approach because respondent’s
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