- 15 - According to the estate, Estate of Cervin v. Commissioner, 111 F.3d 1252 (5th Cir. 1997), revg. T.C. Memo. 1994-550, on remand T.C. Memo. 1998-176, affd. 200 F.3d 351 (5th Cir. 2000), “holds that the Government’s litigating position includes pre-litigation proceedings”. Our reading of Estate of Cervin v. Commissioner, supra, does not reveal any such holding. In any event, even if Estate of Cervin v. Commissioner, supra, could be so read, we believe that under the decisions of the court to which an appeal of this case would be taken, the United States Court of Appeals for the Ninth Circuit, as under our own decisions, section 7430 requires a bifurcated approach in determining whether the position of the United States in a judicial proceeding is substantially justified for purposes of section 7430(c)(4)(B). See, e.g., Kenney v. United States, supra; Huffman v. Commissioner, supra; Maggie Mgmt. Co. v. Commissioner, supra; Swanson v. Commissioner, supra. Furthermore, we cannot distinguish the cases utilizing the bifurcated approach on the ground that “In each of those cases the judicial proceedings were preceded by administrative proceedings in which the taxpayers failed to come forward with the evidence needed to resolve the contested issues.” The bifurcated approach was formulated because of the language of the statute, particularly, thePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
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