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In effect, the estate is asking the Court to take into
account respondent’s actions during the prelitigation
administrative proceedings in determining whether the
position of the United States was substantially justified
in this judicial proceeding. This would be contrary to the
bifurcated approach described above. Under that approach,
the analysis of the reasonableness of the Government’s
position is bifurcated into an analysis of the position of
the United States in the administrative proceedings, and a
separate analysis of its position in the judicial
proceedings. See Kenney v. United States, supra at 1033;
Huffman v. Commissioner, 978 F.2d at 1144-1148; Maggie
Mgmt. Co. v. Commissioner, 108 T.C. 430 (1997); Swanson v.
Commissioner, 106 T.C. 76 (1996); see also Church of
Scientology W. United States v. United States, 995 F.2d 230
(9th Cir. 1993) (unpublished opinion) (“Thus, while conduct
prior to the initiation of litigation may color a court’s
determination as to whether the position of the United
States was substantially justified, * * * the government’s
position in the judicial proceeding must be determined with
reference only to actions taken after a complaint or
petition has been filed.”).
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