- 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 determination
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