Estate of Charles A. Lippitz, Deceased, Michael Lippitz, Administrator and Rhita S. Lippitz - Page 11




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          Respondent was free to do so; however in the absence of any legal           
          or factual basis to make his position reasonable, he did so at              
          his peril.  We find that respondent was not substantially                   
          justified in denying petitioner’s claim for relief after                    
          receiving CCISO’s recommendation for relief and filing his answer           
          to petitioner’s amended petitions.                                          
          B. Qualified Offer                                                          
               Under section 7430(c)(4)(E) a party shall also be treated as           
          the prevailing party if “the liability of the taxpayer pursuant             
          to the judgment in the proceeding (determined without regard to             
          interest) is equal to or less than the liability of the taxpayer            
          which would have been so determined if the United States had                
          accepted a qualified offer of the party under subsection (g).”              
          The qualified offer provision of section 7430(c)(4)(E) applies              
          without regard to whether respondent’s position in the matter is            
          substantially justified.7  See Haas & Associates Accountancy                
          Corp. v. Commissioner, 117 T.C. 48, 59 (2001), affd. 55 Fed.                
          Appx. 476 (9th Cir. 2003); McGowan v. Commissioner, T.C. Memo.              
          2005-80.                                                                    


               7Sec. 7430(c)(4)(E)(iv) provides that the qualified offer              
          subparagraph “shall not apply to a party which is a prevailing              
          party under any other provision of this paragraph.”  For the                
          period prior to respondent’s answer to the amended petitions,               
          petitioner was not a prevailing party with respect to any of the            
          docketed cases.  Thus, it is necessary to determine whether                 
          petitioner was a prevailing party based on having submitted a               
          qualified offer during the period prior to respondent’s answer.             





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