Gilbert Vasquez - Page 44

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               Respondent contends that Petitioner failed to satisfy                  
               the qualified offer requirement.  Amazingly, if                        
               Petitioner goes down that path of qualified offer,                     
               according to IRS Bulletin:  2004-5, Feb 2, 2004 T.D.                   
               9106, Awards of Attorney Feeds and other costs based                   
               upon qualified offers.  If a qualified offer had been                  
               made and accepted attorney fees would not be awarded.                  
               As such, why would anyone ever want to submit a                        
               qualified offer, when the position of Respondent is not                
               to pay legal fees upon such a request, even though Case                
               law provides for such an award.  [Reproduced                           
               literally.]                                                            
          Substantially the same statement appears in petitioner’s                    
          answering legal memorandum.                                                 
               The qualified offer provision allows a taxpayer that is not            
          a “prevailing party under any other provision of this paragraph”            
          (sec. 7430(c)(4)(E)(iv)) to nevertheless be treated as a                    
          prevailing party to some extent, if the taxpayer has made a                 
          qualified offer, the case was not settled, and the taxpayer’s               
          liability ends up as less than or equal to the liability under              
          the qualified offer.  Accordingly, the qualified offer provision            
          does not remove benefits that a taxpayer would otherwise be                 
          entitled to; the provision, rather, adds a possibility of a                 
          benefit where the taxpayer would otherwise not be entitled to any           
          award.  Also, the provision appears to be designed to encourage             
          the Commissioner to take seriously any taxpayer settlement offer.           
          See discussion in Haas & Associates Accountancy Corp. v.                    
          Commissioner, 117 T.C. 48, 59 (2001), affd. 55 Fed. Appx. 476               
          (9th Cir. 2003).                                                            







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