- 28 - 1. Petitioners have been apprised that RESPONDENT has conceded the case. And a judgment was issued in favor of Petitioner. As such Petitioner’s have substantially prevailed on the issue. This satisfies the litigation element of Code Section 7430, and the prevailing element. Under the Congressional Committee Report on P.L. 100-647, the Committee Reports seem to reflect an intent that one be permitted to recover fees and costs any time the IRS has issued a 30-day letter. This however differs from Statute, which states that the “substantially unjustified position” of the United States must be asserted as of “the date of the receipt by the taxpayer of the notice of the decision of the IRS Appeals Office, or, the date of the notice of deficiency.” IRS Code 7430(c)(7). In item 2, of Petitioner’s Motion for Legal Costs, dated 1-21-06, Petitioner alleged Respondent was substantial unjustified. 2. “The position advanced by the United States was substantially unjustified by the facts that 5 children were involved. To deny the two Earned Income Deductions when this many children were involved Petitioner believes was both unjustified, and based on red lining the area in which Petitioner lives.” [Reproduced literally.] We agree with respondent that his position in this litigation was substantially justified. “Substantially justified” is defined as “justified to a degree that could satisfy a reasonable person” and having a “reasonable basis both in law and fact.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks omitted);16 16 Although the dispute in Pierce v. Underwood, 487 U.S. 552 (1988), arose under the provisions of the Equal Access to Justice Act (EAJA), 28 U.S.C. sec. 2412(d), the relevant provisions of this part of the EAJA are almost identical to the language of this part of sec. 7430. Cozean v. Commissioner, 109 T.C. 227, (continued...)Page: Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Next
Last modified: May 25, 2011