Tae M. & Young J. Kim - Page 13




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          issue or set of issues presented, sec. 7430(c)(4)(A)(i)(II), and            
          (2) meets the net worth requirements of 28 U.S.C. sec.                      
          2412(d)(2)(B) (net worth requirements), sec. 7430(c)(4)(A)(ii).             
          In order to qualify for an award under section 7430(a), the                 
          prevailing party must (1) have exhausted the available adminis-             
          trative remedies, sec. 7430(b)(1), and (2) not have unreasonably            
          protracted the court proceeding, sec. 7430(b)(3).  The party                
          moving for an award under section 7430(a) has the burden of                 
          establishing that all of the foregoing criteria have been satis-            
          fied and that the costs claimed are reasonable litigation costs             
          incurred in connection with the court proceeding under section              
          7430(a)(2).  Rule 232(e); see also Corson v. Commissioner, 123              
          T.C. 202, 205-206 (2004).                                                   
               There is an exception to the definition in section                     
          7430(c)(4)(A) of the term “prevailing party”.  That exception is            
          found in section 7430(c)(4)(B), which provides:  “A party shall             
          not be treated as the prevailing party in a proceeding * * * if             
          the United States establishes that the position of the United               
          States in the proceeding was substantially justified.”  Sec.                
          7430(c)(4)(B)(i).                                                           
               The position of the United States is substantially justified           
          if it “is one that is ‘justified to a degree that could satisfy a           
          reasonable person’ or that has a ‘reasonable basis both in law              
          and fact.’ Pierce v. Underwood, 487 U.S. 552, 565 (1988)”.                  







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