Gilbert Vasquez - Page 27

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                         documents were supplied to the Fresno                        
                         service center.                                              
                    6.   Petitioner requested depositions to be                       
                         authorized by this Court to examine the                      
                         word document, and or the absence of it                      
                         and the use and recollection of statements                   
                         made by IRS reps to Petitioner’s Counsel.                    
                         This request was denied.  Petitioner                         
                         instead was forced on relying on                             
                         Respondent obtaining statements regarding                    
                         this mis-spelled word in Petitioner’s                        
                         transcript.                                                  
                    7.   Not surprisingly Respondent’s examination                    
                         of supposed witnesses produced no smoking                    
                         gun or even a recollection of comments                       
                         regarding Petitioner’s case, which took                      
                         place prior to Petitioner discovering the                    
                         P22 showing error rates that are so                          
                         staggering, that if those same error rates                   
                         were done in private industry, and an                        
                         individual was forced to suffer because of                   
                         the error rate, civil and criminal charges                   
                         would have flown from the egregious 54%                      
                         error rate, and 75% of viewed cases having                   
                         documentation supporting EIC                                 
                         qualification.  [Reproduced literally.]                      
               In his answering legal memorandum petitioner states as                 
          follows:                                                                    
               PETITIONER HAS ALLEGED THE GOVERNMENT’S POSITION WAS                   
               NOT SUBSTANTIALLY JUSTIFIED.                                           
               All agree that �2412(d)(1)(B) requires a fee applicant                 
               to allege that the Government’s position “was not                      
               substantially justified.  Scarborough v. Principi, 541                 
               U.S. 401.  It is not Petitioner’s responsibility to                    
               prove it was in fact substantially justified, only to                  
               allege that Respondent was not substantially justified.                
               In this case, the claim Respondent was not                             
               substantially justified has already been made, which is                
               described in the below paragraphs.                                     
               Petitioner’s Motion for Legal Costs, dated 1-21-06,                    
               stated in 1. of the brief, that the dynamics of the                    
               Committee report versus the statute.  In this                          
               recitation, Petitioner covered the magic words of                      
               substantially unjustified.                                             





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