Western Management, Inc. - Page 5




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          controversy or the most significant issues presented.  See sec.             
          7430(c)(4)(A).  The Court, in its 2003 opinion, upheld                      
          respondent’s determinations relating to the penalties, Mr.                  
          Kovacevich’s employment status, and petitioner’s failure to                 
          withhold Mr. Kovacevich’s FICA and FUTA taxes.                              
               The Court of Appeals for the Ninth Circuit merely remanded             
          the case for the Court to recalculate the amounts owed by                   
          petitioner after the application of section 3402(d).  W. Mgmt.,             
          Inc. v. Commissioner, 176 Fed. Appx. 778 (9th Cir. 2006).                   
          Section 3402(d) provides that to the extent Mr. Kovacevich paid             
          income tax on the wages at issue, respondent cannot collect the             
          FICA and FUTA taxes from petitioner.  See id.  The Court of                 
          Appeals, however, affirmed this Court’s determinations relating             
          to the substantive issues in the case (e.g., Mr. Kovacevich’s               
          employment status and petitioner’s failure to withhold Mr.                  
          Kovacevich’s FICA and FUTA taxes).  Simply put, petitioner did              
          not substantially prevail and thus, is not entitled to litigation           
          costs.                                                                      
               Contentions we have not addressed are irrelevant, moot, or             
          meritless.                                                                  
               To reflect the foregoing,                                              

                                                  An appropriate order and            
                                             decision will be entered.                








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