- 11 - “substantially justified”. This is the so-called bifurcated approach used in determining whether the position of the United States is substantially justified for purposes of section 7430(c)(4)(B). See, e.g., Kenney v. United States, 458 F.3d 1025, 1033 (9th Cir. 2006); Huffman v. Commissioner, 978 F.2d at 1144-1148; Maggie Mgmt. Co. v. Commissioner, supra; Swanson v. Commissioner, supra. The estate’s motion seeks only litigation costs. Therefore, we need examine only respondent’s position in this judicial proceeding. See sec. 7430(c)(7)(A). In most cases, the position of the United States in a deficiency proceeding in this Court is the position set forth in the Commissioner’s answer to the petition. See, e.g., Huffman v. Commissioner, supra; Sher v. Commissioner, 861 F.2d 131, 134-135 (5th Cir. 1988), affg. 89 T.C. 79 (1987); Maggie Mgmt. Co. v. Commissioner, supra; Goertler v. Commissioner, T.C. Memo. 2003-136; Rosario v. Commissioner, supra. In this case, respondent never filed an answer. The position of the United States was established in respondent’s second motion to extend time within which to answer. In that motion, respondent made a full concession of the tax deficiency and additions to tax determined in the notice of deficiency. As mentioned above, the secondPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
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