Estate of Daphne Baynham White, Deceased, Kemble White, Independent Executor - Page 11

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             “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 second                






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