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required the trial memoranda to be exchanged “not less than 14
days before the first day of the trial session.”) On December
13, 2004, at the calendar call the parties reported a basis of
settlement; they were ordered to submit decision documents by
January 12, 2005. The Court received the decision documents and
on January 12, 2005, entered decision for petitioner that there
was a $2,890 overpayment for 2002.
Petitioner’s litigation costs motion was received after the
Court entered the parties’ stipulated decision. In the exercise
of its discretion, the Court sua sponte vacated the entry of
decision so that petitioner’s motion could be considered and
disposed of in the Court’s decision of the instant case (see Rule
232(f)), and directed that petitioner’s motion then be filed.
See, e.g., Swanson v. Commissioner, 106 T.C. 76, 85 (1996).
When the answer was filed in the instant case, respondent
did not have any documentation supporting petitioner’s claimed
earned income credit.
Respondent first received such documentation as attachments
to petitioner’s first motion in limine, about 4-1/2 months after
the answer was filed.
Respondent’s position in the instant case was substantially
justified.
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