Estate of Daphne Baynham White, Deceased, Kemble White, Independent Executor - Page 10

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             of the reasonableness of the Commissioner’s position is                  
             based upon the available facts that formed the basis for                 
             the position, as well as any controlling legal precedent.                
             See Maggie Mgmt. Co. v. Commissioner, 108 T.C. 430, 442                  
             (1997); Coastal Petroleum Refiners, Inc. v. Commissioner,                
             94 T.C. 685, 688 (1990).                                                 
                 The phrase “position of the United States” is defined                
             by section 7430(c)(7), as the position taken by the United               
             States in a judicial proceeding, see sec. 7430(c)(7)(A),                 
             and the position taken in an administrative proceeding as                
             of the earlier of (1) the date on which the taxpayer                     
             receives the notice of the decision of the Internal Revenue              
             Service Office of Appeals, or (2) the date of the notice of              
             deficiency, see sec. 7430(c)(7)(B).  Based upon the plain                
             language of this definition, we held in Huffman v.                       
             Commissioner, T.C. Memo. 1991-144, that the position of the              
             United States in the administrative proceedings was                      
             unjustified, whereas the position of the United States in                
             the judicial proceeding was “not substantially                           
             unjustified”.  In effect, we held that the United States                 
             can take two positions in a particular case, one position                
             in the prelitigation administrative proceedings and another              
             position in the judicial proceedings, and each position                  
             must be evaluated separately to determine whether it was                 






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