Morton and Anne Kwestel - Page 7




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          “position” must not have been substantially justified.  Sec.                
          7430(c)(4)(A) and (B).                                                      
               Under section 7430(c)(7)(B), respondent’s position that is             
          to be evaluated as to the justification therefor is identified as           
          the position respondent takes in the administrative proceeding as           
          of the earlier of either the date of receipt by the taxpayer of             
          respondent’s Appeals Office’s notice of decision or the date of             
          mailing to the taxpayer of respondent’s notice of deficiency                
          (i.e., no mention is made in section 7430(c)(7)(B) of the date of           
          respondent’s 30-day letter).                                                
               Because of the more restrictive language of section                    
          7430(c)(7)(B), we have held that a taxpayer cannot be treated as            
          a prevailing party under section 7430 where respondent is treated           
          as never having adopted a “position” in an Appeals Office notice            
          of decision or in respondent’s notice of deficiency.  See Rathbun           
          v. Commissioner, 125 T.C. 7, 14 (2005); Fla. Country Clubs, Inc.            
          v. Commissioner, 122 T.C. 73, 87 (2004), affd. 404 F.3d 1291                
          (11th Cir. 2005).                                                           
               Because respondent herein issued to petitioners neither an             
          Appeals Office notice of decision nor a notice of deficiency, we            
          cannot consider respondent to have adopted any position for                 
          purposes of section 7430.  Petitioners therefore cannot be                  
          treated as a prevailing party, and petitioners may not recover              
          their $7,253 in administrative costs.                                       







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