Gilbert Vasquez - Page 43

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          the taxpayer satisfies the qualified offer provisions of                    
          subsections (c)(4)(E) and (g) of section 7430.                              
               In his motion for an award of reasonable litigation costs              
          petitioner contended as follows:                                            
               4.  Petitioner’s filing of their Petition stating that                 
               an EIC was available satisfies the Qualified Offer                     
               Requirements if any needed to obtain Litigation Costs.                 
               The Petition itself satisfies notice to the Director of                
               the IRS that the Petition was requesting Litigation                    
               costs.  The fact that the Appeals office made an                       
               internal ruling that Petitioner’s deserved the EIC                     
               credit, and yet RESPONDENT’s counsel failed to follow                  
               that position satisfies the point that Petitioners                     
               availed themselves of the Appeal process satisfies the                 
               Appeal element with respect to requesting Legal fees                   
               and Costs.  [Reproduced literally.]                                    
          In a telephone conference, petitioner’s counsel informally                  
          indicated that his contentions as to the qualified offer                    
          provisions were in error and that claim was no longer part of the           
          dispute in the instant case.21                                              
               In his opening legal memorandum, petitioner revisits the               
          issue, stating as follows:                                                  


               21 Compare, e.g., Johnston v. Commissioner, 122 T.C. 124,              
          126 (2004), affd. 461 F.3d 1162 (9th Cir. 2006), with Downing v.            
          Commissioner T.C. Memo. 2005-73, Item E, regarding the                      
          requirement of sec. 7430(g)(1)(C) that the document he                      
          “designated at the time it is made as a qualified offer for                 
          purposes of this section”.  The petition did not include such a             
          designation.  Also, Rule 34(b)(8) provides that a claim for                 
          litigation costs “shall not be included in the petition in a                
          deficiency or liability action”, so that the petition filing                
          could not constitute a qualified offer.  Finally, sec.                      
          7430(c)(4)(E)(ii)(I) provides that the qualified offer                      
          alternative is not available to “any judgment issued pursuant to            
          a settlement”; the instant case has been settled.                           




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