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However, that is not the case here. It was not until after
petitioner actively litigated the issue––by filing a motion for
summary judgment––that respondent conceded she was entitled to
innocent spouse relief. We find this akin to a concession after
trial.
We do not believe Congress intended to grant respondent the
latitude to wait until just before the resolution of a
dispositive motion, or the end of a trial to concede a matter and
still benefit from the settlement exclusion of section
7430(c)(4)(E). Section 7430 was designed to emulate Rule 68 of
the Federal Rules of Civil Procedure and encourage settlement by
imposing litigation costs on the party unwilling to settle.
Gladden v. Commissioner, supra at 450. Respondent was unwilling
to settle this case on the terms and at the times offered by
petitioner. Respondent cannot sidestep the consequences of such
refusal by conceding the issues after petitioner had effectively
presented the case for disposition by the Court.
C. Net Worth Requirements
Respondent also argues that petitioner has not established
that she meets the net worth requirements required to claim
litigation fees. To qualify for an award of litigation costs,
the prevailing taxpayer cannot have a net worth that exceeded $2
million at the time the petition was filed. Sec.
7430(c)(4)(A)(ii); 28 U.S.C. sec. 2412(d)(2)(B) (2000).
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