- 9 - 2005 is limited under section 7430(c)(1)(B)(iii) to $150 per hour. See Rev. Proc. 2004-71, 2004-2 C.B. 970, 976. Respondent notes that the estate has not shown that any of the special factors enumerated in section 7430(c)(1)(B)(iii) apply in this case. Discussion Under the exception set forth in section 7430(c)(4)(B)(i), a party is not treated as the prevailing party if the United States establishes that its position in the proceeding was “substantially justified”. See sec. 7430(c)(4)(B)(i). The Commissioner's position is substantially justified if it has a reasonable basis in both fact and law and is justified to a degree that could satisfy a reasonable person. See Huffman v. Commissioner, 978 F.2d 1139, 1147 n.8 (9th Cir. 1992) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988) (defining “substantially justified” in the context of the Equal Access to Justice Act, 28 U.S.C. sec. 2412(d) (1994))), affg. in part, revg. in part and remanding T.C. Memo. 1991-144; Norgaard v. Commissioner, 939 F.2d 874, 881 (9th Cir. 1991), affg. in part and revg. in part T.C. Memo. 1989-390; Swanson v. Commissioner, 106 T.C. 76, 86 (1996); Rosario v. Commissioner, T.C. Memo. 2002-247; sec. 301.7430-5(c)(1), Proced. & Admin. Regs. The determinationPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: May 25, 2011