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Petitioners contend that respondent adopted a position in
respondent’s Compliance Division’s September 17, 2003, certified
claim disallowance letter.3 However, under the plain language of
the statute, only respondent’s Appeals Office’s notice of
decision or respondent’s notice of deficiency establishes
respondent’s position for purposes of section 7430. See Fla.
Country Clubs, Inc. v. Commissioner, supra at 86; Wade v. United
States, 865 F. Supp. 216, 219 (D.N.J. 1994). Respondent’s
September 17, 2003, letter from respondent’s Compliance Division
is neither and does not establish respondent’s position for
purposes of section 7430.
Congress considered and decided against changing the
definition of the “position” of the government” in section
7430(c)(7) to include positions taken by respondent in a 30-day
letter first proposing a tax deficiency.4
Under the narrow statutory language of section 7430(c)(7) as
written, under respondent’s interpretative regulation under
3Petitioners cite sec. 301.7430-3(c)(2), Proced. & Admin.
Regs., to support petitioners’ contention that a Certified Claim
Disallowance Letter may be treated as a document wherein
respondent states his “position” for purposes of sec. 7430 as
applied to refund claims. However, because the cited regulation
specifically requires that the notice of claim disallowance be
issued by respondent’s Appeals Office, the cited regulation does
not help petitioners.
4See Fla. Country Clubs, Inc. v. Commissioner, 122 T.C. 73,
78-86 (2004) (discussing the legislative history of sec. 7430)
affd. 404 F.3d 1291 (11th Cir. 2005).
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Last modified: November 10, 2007