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Discussion
We consider first respondent’s objections to receipt of
certain exhibits, then the general considerations regarding
motions for litigation costs, then whether respondent established
that “the position of the United States in the [instant]
proceeding was substantially justified”, and then several of the
other issues that the parties presented.
A. Evidence
1. National Taxpayer Advocate Report
Exhibit 22-P is Publication 2104B, National Taxpayer
Advocate 2004 Annual Report to Congress, Volume 2, Earned Income
Tax Credit (EITC) Audit Reconsideration Study, dated December 31,
2004. Exhibit 22-P is hereinafter sometimes referred to as the
Report. Respondent objects to receipt of the Report on the
ground of relevance. Petitioner’s position is that this report
“covers errors related to Earned Income Tax Credit this
documented error rate tends to prove errors occurred in
petitioner’s case, therefore relevancy is satisfied.” (Reproduced
literally.) Petitioner cites the Report at numerous points in
his legal memoranda to show that “the IRS regularly makes errors
as to EIC issues.”
Rule 402 of the Federal Rules of Evidence (see sec. 7453)
provides the general rule that all relevant evidence is
admissible, while evidence which is not relevant is not
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