Page:United States Statutes at Large Volume 102 Part 4.djvu/775

 PUBLIC LAW 100-647—NOV. 10, 1988

102 STAT. 3745

"(B) expenses, costs, and fees described in paragraph (I)(B), except that any determination made by the court under clause (ii) or (iii) thereof shall be made by the Internal Revenue Service in cases where the determination under paragraph (4)(B) of the awarding of reasonable administrative costs is made by the Internal Revenue Service. Such term shall only include costs incurred on or after the earlier of (i) the date of the receipt 1^ the taxpayer of the notice of the decision of the Internal Revenue Service Office of Appeals, or (ii) the date of the notice of deficiency. "(3) ATTORNEY'S FEES.—For purposes of paragraphs (1) and (2), fees for the services of an individual (whether or not an attorney) who is authorized to practice before the Tax Court or before the Internal Revenue Service shall be treated as fees for the services of an attorney. "(4) PREVAILING PARTY.—

"(A) IN GENERAL.—The term 'prevailing psuty' means any party in any proceeding to which subjection (a) applies (other than the United States or any creditor of the taxpayer involved)— "(i) which establishes that the position of the United States in the proceeding was not substantially justified, "(ii) which— "(I) has substantially prevailed with respect to the amount in controversy, or "dD has substantially prevailed with respect to the most significant issue or set of issues presented, and "(iii) which meets the requirements of the 1st sentence of section 2412(d)(l)(B) of title 28, United States Code (as in effect on October 22, 1986) except to the extent differing procedures are established by rule of court and meets the requirements of section 2412(d)(2)(B) of such title 28 (as so in effect). "(B) DETEmiaNATION AS TO PREVAILING PARTY.—Any

determination under subparagraph (A) as to whether a party is a prevailing party shall be inade by agreement of the parties or— "(i) in the case where the final determination with respect to the tax, interest, or penalty is made at the administrative level, by the Internal Revenue Service, or "(ii) in the case where such final determination is made by a court, the court "(5) ADMINISTRATIVE PROCEEDINGS.—The term 'administrative proceeding* means any procedure or other action before the Internal Revenue Service. "(6) COURT PROCEEDINGS.—The term 'court proceeding' means any civil action brought in a court of the United States (including the Tax Court and the United States Claims Court). (7) POSITION OP UNITED STATES.—The term 'position of the United States' means— "(A) the position taken by the United States in a judicial proceeding to which subsection (a) applies, and "(B) the position taken in an administrative proceeding to which subsection (a) applies as of the earlier of—

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