- 45 -
In the instant case the qualified offer provisions do not
provide an alternate route to “prevailing party” status. See
supra note 21. Also, petitioner’s efforts to raise the qualified
offer provision were so clearly inappropriate and poorly
conceived, and petitioner’s determination to further discuss the
issue in both legal memoranda was so wasteful, that, if we had
otherwise determined to award litigation costs, then we would (1)
determine how much of Moffatt’s charged time was allocable to
this diversion and (2) disallow the charges for that time.
E. Other Matters
The foregoing resolves the litigation costs dispute and
requires denial of petitioner’s motion. But the parties have
presented numerous additional matters that may usefully be
commented on.
1. Failure To Exhaust Available Administrative Remedies
Respondent contends that petitioner failed to exhaust
available administrative remedies in that (a) petitioner failed
to respond to the May 16, 2003, letter or otherwise act (file a
protest or ask for an Appeals conference) before the notice of
deficiency was issued, and (b) “after the case was docketed,
petitioner refused to participate in an Appeals conference”.
Petitioner contends:
Section 7430(b)(1) provides that in order to recover
litigation costs, a taxpayer must have taken advantage
of available administrative remedies. The regulations
to this section include within this requirement
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