Gilbert Vasquez - Page 28

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                    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...)           




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