Gilbert Vasquez - Page 31

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          documentation through Moffatt until the first motion in limine,             
          about 4-1/2 months after the answer was filed.                              
               We conclude respondent’s position was substantially                    
          justified at the time the answer was filed, and respondent timely           
          conceded the case after receiving the documentation attached to             
          petitioner’s motion in limine.  As a result, we conclude                    
          respondent’s position in the litigation was substantially                   
          justified within the meaning of section 7430(c)(4)(B)(i).                   
               We consider first what was the “position of the United                 
          States” that respondent has the burden of proving was                       
          “substantially justified”.  Then we consider what respondent knew           
          when respondent took that position.  Then we consider whether               
          that position was substantially justified.                                  
               2.  Respondent’s Position                                              
               In light of the foregoing, the position of the United States           
          in the instant case is the position respondent took in the                  
          answer, filed on November 20, 2003.17                                       
               In the notice of deficiency, respondent’s explanation for              
          the earned income credit disallowance is “Since you did not                 

               17 Petitioner contends that the position of the United                 
          States in the instant case is the position taken in the notice of           
          deficiency.  In the instant case, as shown infra, the answer in             
          effect embraced the notice of deficiency.  It is not clear to us            
          why petitioner appears to reject the Maggie Management approach.            
          On the record in the instant case, neither our analysis nor our             
          conclusion would be different if we were to adopt petitioner’s              
          approach.  See Maggie Management Co. v. Commissioner, 108 T.C.              
          430, 442-443 (1997).                                                        




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