Gerard and Audrey Kathleen Hennessey - Page 47




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          adequate substantiation for the business expense deductions                 
          disallowed in the notice of deficiency.  Taking into account                
          controlling legal precedent and based on the facts available to             
          respondent when the notice of deficiency was issued, as well as             
          when the answer was filed, we find that respondent’s position               
          that results from that refusal has a reasonable basis in law and            
          fact and therefore is substantially justified.  See Maggie Mgmt.            
          Co. v. Commissioner, 108 T.C. at 443.                                       
               Our conclusion on this point is not altered by the fact that           
          a settlement was achieved after “mock-up” tax returns that                  
          differed from all of the returns previously submitted by                    
          petitioners and additional substantiation were provided and                 
          reviewed by respondent’s counsel.  See Harrison v. Commissioner,            
          854 F.2d 263, 265 (7th Cir. 1988), affg. T.C. Memo. 1987-52;                
          Wickert v. Commissioner, 842 F.2d 1005 (8th Cir. 1988), affg.               
          T.C. Memo. 1986-277.                                                        
          II.  The “Deferred Income” Issue                                            
               In the notice of deficiency and in his answer, respondent              
          takes the position that $195,000 of licensing fees received by              
          ISOA, Inc., are includable in its income in the year received.              
          According to petitioners, respondent has failed to establish that           
          his position has a reasonable basis in law.  Petitioners argue              
          that respondent’s position is, therefore, not substantially                 
          justified.                                                                  







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