Sylvia A. Sliwa v. Commissioner of Internal Revenue

concurring and dissenting:

The majority opinion ably sets forth the reasons why prelitigation conduct should be considered in determining whether the “position of the United States in the civil proceeding” is unreasonable. I agree *610 wholeheartedly with that portion of the opinion.

I believe, however, that the case should be remanded to the Tax Court to determine under the proper standard whether the United States’ conduct was unreasonable in this case. In the event of a further appeal on this issue our review would be illuminated by the Tax Court’s decision.

If I were to decide the issue, however, I would hold that the conduct was unreasonable. In the earlier quiet-title case in which the government’s conduct was found to be unreasonable, the “innocent spouse” issue was raised. Also, conferences were held prior to the government’s forcing Mrs. Sliwa to commence this action to secure release from the deficiency notice. Despite being furnished with an affidavit from Mr. Sliwa indicating that his spouse was totally unaware of his embezzlement and Mrs. Sli-wa’s statement to that effect, the government never requested bank records or any other information available to Mrs. Sliwa,…

This case arises out of alleged deficiencies in the 1976, 1976, and 1977 federal income tax paid by appellant Sylvia Sliwa. After Ms. Sliwa filed a petition in the tax court seeking a re-determination of the deficiencies set forth by the Commissioner, the Commissioner of Internal Revenue conceded that Sliwa’s return was not in fact deficient, and stipulated to the dismissal of the Notice of Deficiency against her.

Sliwa then applied to the Tax Court for an award of attorney’s fees under section 7430 of the Internal Revenue Code, 26 U.S. C. § 7430. Under the statute, a prevailing party may be awarded attorney’s fees upon proof that the “position of the United States in the civil proceeding” was unreasonable. The Tax Court, examining the government’s conduct only after Sliwa had filed her petition, found the Commissioner’s position to have been reasonable and denied fees. Sliwa argues on appeal that the Tax Court should have considered the pre-litigation conduct of the agency in determining the “reasonableness” of the government’s position in the civil proceeding, and further that the government’s position was unreasonable both before the litigation and after the filing of her Tax…

839 F.2d 602 61 A.F.T.R.2d 88 -641, 88-1 USTC P 9184 Sylvia A. SLIWA, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 86-7430. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 11, 1987. Decided Feb. 12, 1988. Paul J. Mooney and Marc L. Spitzer, Phoenix, Ariz., for petitioner-appellant. Michael L. Paup, Gilbert S. Rothenberg and John A. Dudeck, Jr., Washington, D.C., for respondent-appellee. Appeal from the Decision of the United States Tax Court. Before POOLE and BOOCHEVER, Circuit Judges, and DIMMICK, * District Judge. POOLE, Circuit Judge: 1 This case arises out of alleged deficiencies in the 1975, 1976, and 1977 federal income tax paid by appellant Sylvia Sliwa. After Ms. Sliwa filed a petition in the tax court seeking a re-determination of the deficiencies set forth by the Commissioner, the Commissioner of Internal Revenue conceded that Sliwa's return was not in fact deficient, and stipulated to the dismissal of the Notice of Deficiency against her. 2 Sliwa then applied to the Tax Court for an award of attorney's fees under section 7430 of the Internal Revenue Code, 26 U.S.C. Sec. 7430 . Under the statute, a…