- 31 - 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).Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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