DENIAL OF ATTORNEY'S FEES UPHELD.

                         NOT FOR PUBLICATION

[2] Miller has failed to meet his burden of demonstrating that the Tax Court abused its discretion when it concluded that the CIR's position was substantially justified. 26 U.S.C. section 7430(c)(4)(A)(ii); In re Yochum, 89 F.3d at 670 (citing Huffman v. Commissioner of Internal Revenue, 978 F.2d 1139, 1147 (9th Cir. 1992). Miller cites no authority to support his contention that the legal and factual positions taken by the CIR were not substantially justified and, contrary to Miller's assertions, the mere fact that he was awarded summary judgment does not demonstrate that the government's position was not substantially justified. In re Yochum, 89 F.3d at 671.

[3] Because this case presented complicated factual issues and a legal issue that had not been addressed by any court on a previous occasion, the Tax Court did not abuse its discretion when it held that the CIR's position was substantially justified. See Marre v. United States, 117 F.3d 297, 302 (5th Cir. 1997); Stebco, Inc. v. United States, 939 F.2d 686, 688 (9th Cir. 1990); Sharp v. United States, 20 F.3d 1153, 1154 (Fed. Cir. 1994); Smith v. United States, 850 F.2d 242, 246 (5th Cir. 1988).

[4] Miller's claim that the Tax Court was incorrect in finding that "there are no deficiencies due from [Miller] in Federal income taxes for the taxable years 1976 through 1980," is without merit.

[5] AFFIRMED FOOTNOTES

¹ This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

² The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4.