MAGISTRATE RECOMMENDS AWARD OF ATTORNEY FEES TO ESTATE.

                    UNITED STATES DISTRICT COURT

[1] This cause is before the Court on Plaintiff's Motion for Attorneys' Fees and Costs (Doc. #69; Motion), filed on May 11, 1999. Defendant's Opposition to Motion for Attorneys' Fees and Costs (Doc. #77; Opposition) was filed on May 28, 1999. On February 23, 2000, the Motion was referred to the undersigned for preparation of a report and recommendation. See Order (Doc. #80).

[2] This case was brought pursuant to "Internal Revenue laws of the United States for the recovery of Estate taxes erroneously and illegally assessed and collected from the Estate of Nolan R. Wilkes, Sr., deceased." Complaint (Doc #1), filed on November 7, 1997, at 1; Amended Complaint (Doc. #63), filed on April 21, 1999, at 1. On Match 9, 1999, the Court granted Plaintiff's Motion for Final Summary Judgment (Doc. #30), filed on January 14, 1999. See Order (Doc. #60; Order) at 13. Thereafter, Plaintiff was permitted to amend his complaint to set forth a claim for attorney's fees. See Order (Doc. #62), entered on April 15, 1999, at 3.

[3] Defendant appealed the grant of, summary Judgment, see Notice of Appeal to the United States Court of Appeals for the Eleventh Circuit (Doc #78), filed on June 18, 1999, but the District Court's judgment was affirmed per curiam "for the reasons stated in [the] order granting the plaintiff's motion for summary judgment." Opinion attached to the Judgement (Doc. #83), entered in the Court of Appeals on February 18, 2000, at 2. Plaintiff, As Appellee, also sought attorney's fees and costs under the Equal Access to Justice Act (EAJA), but his petition was denied without explanation. See order filed in the Court of Appeals on April 21, 2000, attached to the Notice of Filing (Doc. #84), filed on April 27, 2000.

[4] On May 2, 2000, this Court, noting Plaintiff's prior assertion that an unfavorable ruling on the attorney's fees issue at the Eleventh Circuit would presumptively bar his recovery before this Court, directed him to appraise the Court of his view as to the precedential effect of the Eleventh Circuit's ruling denying his request. See Order (Doc. #85) In response, Plaintiff took the position that "the appellate court simply exercised its discretion not to award fees, without ruling on the legal issues." Plaintiff's Response to Court's Order Dated May 2, 2000 (Doc. #86), filed on May 12, 2000, at 2. Thus, he now contends this court still has the discretion to award fees under the EAJA. See id. at 3.

II. DISCUSSION

[5] As the Court agrees with Plaintiff that the Court of Appeals' ruling does not impact this Court's resolution of the Motion, it will now proceed to consider the matter. Plaintiff seeks an award of attorney's fees and costs pursuant to 26 U.S.C. section 7430. See Motion at 1. Under that provision, parties who prevail against the United States may be awarded reasonable litigation costs under certain circumstances. Except where discussed herein, the government concedes Plaintiff has met the prerequisites for an award thereunder. See Opposition at 5. Further, but for its contention in regard to counsel for Plaintiff's work on one issue, see id. at 17- 18, it does not dispute the reasonableness of the fees or hours claimed.

[6] The United States does argue, however, that not all conditions necessary for an award are present in this case. Specifically it contends: 1) the United States' position "has been substantially justified throughout this litigation" and 2) Plaintiff's net worth exceeds the statutory limitation. Opposition at 1. Defendant also contends some costs sought by Mr. Wilkes are not permitted under 28 U.S.C. section 1920. See id.

A. GOVERNMENT'S POSITION NOT SUBSTANTIALLY JUSTIFIED

[7] If the United States can establish its position was substantially justified, attorney's fees will not be available to Plaintiff, as he will "not be treated as the prevailing party" under 26 U.S.C. 7430(c)(4)(i). The statute's current provision in this regard mirrors the EAJA, and case law developed under that statute is generally applicable to both. See In re Rasbury, 24 F.3d 159, 168 (11th Cir. 1994) (defining substantial justification in the section 7430 context with reference to a case decided under the EAJA). To be substantially justified, the government's position must have "a reasonable basis in both law and fact." United States v. Jones, 125 F.3d 1418, 1425 (11th Cir. 1997) (citations and internal quotation marks omitted). The relevant "position" to be examined is "the government's litigation position rather than the position taken by the governmental agency on the underlying action before litigation." United States v. One Parcel of Real Estate, 864 F. Supp. 1267, 1270 (S.D. Fla. 1994) (citing Ashburn v. United States, 740 F.2d 843, 850 (11th Cir. 1984)).

[8] Factors which are potentially relevant to the determination of whether the government's position was substantially justified include the following somewhat overlapping formulations: "(1) the sta[g]e at which the litigation was resolved; (2) views expressed by other courts on the merits; (3) the legal merits of the government's position[; 4] the clarity of the governing law; [5] the foreseeable length and complexity of the litigation; [6] the consistency of the government's position," Jean v. Nelson, 863 F.2d 759, 767 (11th Cir. 1988) (citations omitted), (7) "failure to follow the advice of counsel," id. at 769, and (8) settlement conferences. See In re Rasbury, 24 F.3d at 166. The discussion which follows will incorporate consideration of those factors having application to the present circumstances.

[9] It appears some courts are of the view substantial justification can flow from the single fact that the "relevant statute had not previously been ruled on." Nalle v. Commissioner of Internal Revenue, 55 F.3d 189, 192-93 (5th Cir. 1995) (citing but expressing disagreement with several such decisions). The Fifth Circuit, meanwhile, has declared that a lack of relevant case law will not justify the government's position "'[w]hen Congress adopts a new law the clear and unequivocal language of which unmistakably [excludes]'" it. Id. at 193 (quoting Estate of Perry v. Commissioner, 931 F.2d 1044, 1046 (5th Cir. 1991) (alterations in original). As will be seen, the diversity of opinion with respect to determining substantial justification must be addressed before a decision can be made in the case sub judice.

[10] Here, the United States claims its position "was substantially justified, in the first instance, in initially defending the litigation because the ultimate burden of proof in this case was on the Plaintiff to prove that the determination of liability made by the Internal Revenue Service was incorrect." Opposition at 5. Of course, an observation as to burden of proof cannot dispose of the question of whether the government's position was reasonable as a whole, especially where, as here, the government continually defended the action and even moved for summary judgment.

[11] Defendant next asserts "the issue of statutory interpretation resolved by this Court" was a novel one. Opposition at 6. in such situations, according to the United States, its position should be deemed substantially justified so long as it had some legal support or was not clearly and unequivocally precluded by the statute's language. See id. at 6-7.

[12] In support of its claim that its position was not without support, or at least not clearly contrary to the statute at issue, the government offers several observations. It asserts that, as of March 9, 1999, the date the Court granted summary judgment, there were no circuit decisions, or ANY published decisions for that matter, applying the statutory provision or otherwise indicating that the government's litigation position was unreasonable. See Opposition at 7. "Nor is the legislative history plainly contrary to the Government's reading of the statute," according to Defendant. Id. Further, the government contends its reasonableness is evidenced by the fact "[t]hat the Court grappled with the statutory interpretation question." Id. at 8.

[13] As noted by the Court, the primary issue in dispute in this case was "the extent of the discharge of liability provided by [26 U.S.C.] section 2210(a)(3), which purports to relieve the 'executor' of 'liability' for payment of that portion of the estate tax assumed by [an employee stock ownership plan] pursuant to section 2210." Order at 6. Defendant contended "that section 2210 merely relieves the executor of personal, or perhaps representative, capacity liability for such tax but, in any event, does not relieve the Estate or others from secondary liability for the estate taxes." Id. at 7. However, the Court agreed with Plaintiff that election under the provision at issue "completely discharges both the executor and estate to the extent the two are distinct from liability for such tax." ² Id. at 6; see also id. at 7.

[14] The District Court arrived at its conclusion primarily by reading several related provisions of the Internal Revenue Code (IRC) together to discern congressional intent. See order at 7-10. In doing so, it declared that "[t]he plain meaning of section 2210(a)(3) is thus clear." Id. at 8. Accordingly, although it went on to provide a brief discussion of extra-statutory material, the Court saw no need to resort to it in interpreting the provision. See id. at 10-12. Instead, the Court's examination of the statutory provision in context convinced it the only interpretation which made sense was directly contrary to Defendant's position. See id. at 9-10.

[15] The Court's research in connection with the Motion supports the government's statement that, when the summary judgment order entered against it, there was no case law addressing relief under the statutory provision directly at issue. Further, Defendant's contention that the text of the provision did not compel the Court's decision, see Opposition at 8, is plausible to the extent the provision is viewed standing alone. Since section 2210 provided "the executor is relieved of liability" in certain circumstances and does not specifically refer to the estate being relieved, one question to be resolved is whether reasonableness can be determined in this Circuit by examining in isolation a statutory provision whose language may permit (but does not affirmatively support) the government's position. Consideration of this question has led the undersigned to conclude that the most sensible approach, and the one most in keeping with Circuit precedent, is to evaluate reasonableness with reference to all the relevant information Defendant presumably had available to it.

[16] An integral part of the reasonableness determination not always discussed explicitly concerns the degree of knowledge and reasoning ability a court should deem the government to possess. While at some level of awareness, all prospective interpretations may be seen as clearly either right or wrong, and hence all but the correct interpretations unreasonable, the proper standard to be applied in the present context is obviously much lower. At a minimum, Defendant must be charged with the responsibility of studying the internal Revenue Code to gain a familiary sufficient to argue meaningtfully about how various related provisions of the statutory scheme interact with the provision in dispute. This responsibility matches the approach courts are bound to take when interpreting statutory text. As the Supreme Court has emphasized, "statutory language must always be read in its proper context. 'In ascertaining the plain meaning of [a] statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.'" McCarthy v. Bronson, 500 U.S. 136, 139 (1991) (quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)). Accordingly, cases which suggest the reasonableness of a litigation position may be determined by examining statutory language in isolation or out of context should not be followed. As the Court's previous discussion of the statute as a whole suggests, see Order at 7-10, Defendant's position in regard to the provision at issue was, although perhaps not frivolous, legally unreasonable.

[17] Moreover, factors not explicitly considered by the Court in its summary judgment order weigh in favor of finding the government has not met its instant burden. For instance, significant internal inconsistencies and omissions plagued the United States' arguments. The government persisted in characterizing the Employee Stock Ownership Plan (ESOP) as a guarantor, see, e.g., Defendant's Motion for Summary Judgment (Doc. #39; Defendant's Motion), filed on January 19, 1999, at 8, 13, despite the statutory language it quoted which made clear the ESOP became the primary payor of the assumed tax. See id. at 7 n.6 (quoting 26 U.S.C. section 2210(e) as it existed at the relevant time). Further, as noted by Plaintiff, Defendant's Motion conspicuously omitted reference to 26 U.S.C. 2002, a provision recognized by both Plaintiff, see, e.g., Plaintiff's Memorandum of Law in Support of Motion for Final Summary Judgment (Doc. #31; Plaintiff's Memorandum), filed on January 14, 1999, at 5- 6, and by the Court, see Order at 7-10, as fundamental to an understanding of the tax scheme at issue. ³ While a closer question than that of whether Defendant's position was correct, the Court should not find the United States' litigation position was substantially justified.

B. NET WORTH

[18] To be eligible for fee reimbursement under section 7430, a party must "meet[] the requirements of the 1st sentence of section 2412(d)(1)(B) of title 28, United States Code . . . except to the extent differing procedures are established by rule of court and meet[] the requirements of section 2412(d)(2)(B)." 26 U.S.C. section 7430(c)(4)(A)(ii). The second referenced section of the EAJA provides in part that "'party' means (i) an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed." 28 U.S.C. section 2412(d)(2)(B). The parties agree this $2,000,000 cap applies in the instant case. See Motion at 2, 8; Opposition at 12.

[19] Another provision of the IRC section at issue specifies the $2,000,000 limitation applies to an estate, but indicates net worth "shall be determined as of the date of the decedent's death." 26 U.S.C. section 7430(c)(4)(D). Although neither the EAJA nor the Internal Revenue Code specify how net worth is to be calculated in the present context, the government concurs with Plaintiff that such is determined by looking to the cost of acquisition. See Opposition at 14. ⁴ However, the United States argues "Plaintiff goes astray . . . in his suggestion that the Court should determine the acquisition cost of the estate assets based on the decedent's cost, rather than the estate's acquisition cost of all its assets on the date of the decedent's death." Id. According to Defendant, it is acquisition by the estate, a newly formed legal entity, which must be considered. See id. at 14-15. "For federal tax purposes, the newly formed estate acquires its assets not with the original basis of the decedent but with a stepped up basis to the fair market value of the estate assets as of the date of the decedent's death, or the six- month alternate date." Id. (citing 26 U.S.C. section 2031, 2032). Defendant suggests referring to the estate's Form 706, resulting in a determination that Plaintiff's net worth equals about three million dollars. Id. at 16.

[20] The government contends "Plaintiff's reading of the statute would lead to the ludicrous situation in which the estate of Bill Gates would be eligible for an attorney's fees award "based on his purchase of Microsoft stock for a few pennies a share." Opposition at 15. However, Defendant's argument in this regard is inconsistent. Since it agrees with Plaintiff that assets must be valued by acquisition cost, the government would recognize eligibility to recovery attorney's fees in the case of a stock-rich individual who sues while still alive. Essentially, the government's position would, to use its own terms, allow Mr. Gates to qualify under the net worth requirement, but yet, upon his death, deny eligibility to his estate. Still, Defendant does not suggest a policy consideration which makes the estate's eligibility for attorney's fees appear "ludicrous" but the nondeceased Mr. Gates' eligibility perfectly acceptable.

[21] The government also argues "[i]t would be inconsistent to view the estate's basis for tax purposes as fair market value as of the date of death and for net worth purposes as the decedent's historic acquisition cost." Opposition at 16. While not entirely without appeal, this contention is unavailing. Simply put, taxation systems and provisions for shifting attorney's fees in litigation with the government serve different purposes. It is quite possible for Congress to determine one measure of worth is appropriate in calculating the necessary tax contribution and another measure makes more sense where balancing incentives for "challeng[ing] unreasonable IRS actions without being deterred by the cost of litigation." Id. at 13 (citing Cooper v. United States, 60 F.3d 1529, 1530 (11th Cir. 1995) The Court notes that, in fact, property-related taxes and fees are often assessed in this country proportionate to the property's approximate market value -- and these assessments are due while "the owner is alive, although the government concedes the EAJA's scheme mandates valuing the same property, at the same time, according to its acquisition cost.

[22] There is also a fundamental problem with the government's position that market value should be used in the measurement of an estate's net worth at the time of the decedent's death. Defendant urges that "the estate's acquisition cost of all its assets on the date of the decedent's death" is the touchstone of net worth calculation in the present context. Opposition at 14. But the ordinary meaning of "acquisition cost" is not compatible with the United States' position, which is really focused upon acquisition value. Therefore, even accepting the government's argument that the estate's acquisition cost must be used, it appears such a figure would be fairly minimal, representing what it cost the estate to acquire the decedent's assets. Of course, it would seem odd to calculate net worth in the manner just described and the Court is confident that this is not what Congress intended.

[23] No authority directly supportive of the government's position has been cited and the Court has found no cases holding that assets of an estate should be measured according to the fair market value at decedent's death. At least one court however, has held that acquisition cost (apparently recognized as meaning the decedent's cost of acquisition) should be used in the measurement of an estate's net worth. Estate of Lute v. United States, 19 F. Supp. 2d 1047, 1061 (D. Neb. 1998) (disapproving the government's calculation of net worth at $6,153,322.55 and using "acquisition cost of [the] real estate" in arriving at figure of $1,701,851.27).

[24] Further, as Plaintiff contends, the amendments to section 7430 speak to the date at which the valuation of an estate is to be made, not the method used to value it. See Motion at 12. It appears the new language was most likely enacted solely in response to the potential practice of disposing of an estate's assets prior to filing suit as a way to meet the net worth requirement. See generally Estate of Woll by Woll v. United States, 44 F.3d 464, 468-71 (7th Cir. 1994).

[25] Thus, in light of its review of legislative history and case law interpreting the net worth limit under the EAJA, the Court concludes original acquisition cost should be looked to for calculations performed pursuant to 26 U.S.C. section 7430(c)(4)(D)(i)(I). Alternatively, even if such original cost is not always to be used, it should be used in the case of estates, which are "merely the sum total of a deceased person's property," Estate of Woll by Woll, 44 F.3d at 469, and therefore should not be deemed to occupy a significantly different position from the deceased individual for EAJA or section 7430 purposes. ⁵

[26] The government's claim that the affidavits submitted are insufficient, see Opposition at 15 n.3, is rejected. The statute does not establish strict standards for proving net worth and decisional law has recognized "'some informality of proof is appropriate'" in this context. United States v. Eighty-Eight (88) Designated Accounts Containing Monies Traceable to Exchanges for Controlled Substances, 786 F. Supp. 1578, 1580 (S.D. Fla. 1992) (quoting United States v. 88.88 Acres of Land, 907 F.2d 106, 108 (9th Cir. 1990)). Accordingly, the evidence submitted by Plaintiff showing net worth, with assets valued at decedent's acquisition value, should be accepted and thus the estate determined to meet the statutory net worth requirement.

C. PREVAILING PARTY

[27] Defendant concedes Prevailing status, except to the extent it argues Plaintiff should be denied any award for services performed with respect to his argument that a Taxpayer Assistance Order (TAO) had been issued. See Opposition at 17-18. The government asserts such efforts unreasonably protracted the proceeding and so cannot be reimbursed under 26 U.S.C. section 7430(b)(3).

[28] In their cross-motions for summary judgment, the parties disputed the existence (and relevance to this litigation) of a TAO Plaintiff alleged was issued on November 9, 1992. See Plaintiff's Memorandum at 13-15; Defendant's Motion at 9-13. However, given its resolution of the statutory issue, the Court determined it did not need to address the substance of this question. See Order at 12 n.4.

[29] Plaintiff argued the Court could grant summary judgment in his behalf by finding the IRS violated a TAO it issued to him. See Plaintiff's Memorandum at 15; Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment (Doc. #48), filed on January 29, 1999, at 10, 11. Defendant asserts, inter alia, "a federal court is without jurisdiction to direct a refund of federal tax unless the taxpayer has made an overpayment. Opposition at 17.

[30] Both parties argued the overpayment issue solely in terms of the proper interpretation of section 2210. Further, this suit was brought to obtain a refund of taxes paid and apparently not to seek any other damages, beyond the costs of litigation. See Amended Complaint at 3-4. Hence, the Court will as a threshold matter assess the reasonableness of the position that IRS levying in violation of a TAO can provide a basis for obtaining reimbursement of the money collected even without a determination such is owed due to an overpayment.

[31] Under ordinary circumstances, a taxpayer can prove entitlement to a refund only by showing "he has overpaid his tax." Allen v. United States, 51 F.3d 1012, 1014 (11th Cir. 1995) (quoting Lewis v. Reynolds, 284 U.S. 281, 283 modified 284 U.S. 599 (1932)); see also Cindy's Inc. v. United States, 740 F.2d 851, 854 (11th Cir. 1984) (concluding the plaintiff corporation had "failed to demonstrate any reason why its refund claim should not be determined by the established law that refunds are due only for overpayment of taxes"). However, the facts of this case might not have constituted ordinary circumstances. The Ninth Circuit has recognized an exception to the general rule requiring overpayment to receive a refund "when the taxpayer's action more closely resembles a tort claim for conversion than a traditional refund action," Powelson v. United States, 979 F.2d 141, 144 (9th Cir. 1992) (citing Martinez v. United States, 669 F.2d 568, 569 (9th Cir. 1981)). The Martinez court expressed disagreement with the idea "that, no matter how deliberately the IRS violated its own procedures, the taxpayer would be without a remedy unless the value of property seized exceeded his tax liability." 669 F.2d at 569; see also Powelson, 979 F.2d at 145 (noting that in Martinez the taxpayer challenged not the amount of his tax liability but the way the IRS took his property). Here, Plaintiff alleges "[t]he IRS revenue officer assigned to the case ignored [the TAO]." Amended Complaint paragraph 12; see also id. paragraph 13 (alleging "refusal of IRS revenue officer to honor the Problems Resolution Officer's order").

[32] TAO's are specifically provided for by statue, see 26 U.S.C. section 7811, and, as the provision was worded at the relevant time, could "require the Secretary . . . to cease any action, or refrain from taking any action, with respect to the taxpayer under chapter 64 (relating to collection). . . ." Such orders are "binding on the Internal Revenue Service unless reversed by an official authorized to modify or rescind" them as provided for in the statute. 26 C.F.R. 301.7811-1(c)(2). If courts failed to accord any consequences to IRS violations of TAO's such orders may well, as Plaintiff contends, be rendered meaningless. See Plaintiff's Memorandum at 15. Thus, the argument that courts might order a return of money collected in violation of a TAO does not, appear unreasonable.

[33] Nor does Plaintiff's argument that a TAO was issued in this case seem unreasonable. In opposition to Plaintiff's summary judgment motion, Defendant argued the November 1992 letter alleged to be a TAO was not such a document for three reasons.

     First, the Plaintiff's Application for a Taxpayer Assistance

[34] The letter Plaintiff received from the IRS Problem Resolution Office states: "This is in response to the Form 911, Application for Taypayer Assistance Order (ATAO) to Relieve Hardship, on behalf of the Estate of Nolan R. Wilkes which was filed by you. We apologize for the delay in our reply." Exhibit C to Plaintiff's Memorandum (alleged TAO). It goes on to indicate that "enforcement of collection will be directed to the ESOP. Please disregard the Notice of Intent to Levy which was, recently received." Id. The quoted language certainly supports the position this document should be deemed a TAO. While there is reason to believe that it was not issued in complete accordance with the regulations, Plaintiff acted reasonably in engaging in discovery in regard thereto and in arguing the IRS should have been bound to following its terms absent appropriate notice that it was being modified or rescinded.

[35] As for Defendant's argument the alleged TAO "temporarily directed enforcement of collection to the ESOP in an effort to resolve the Estate's immediate difficulties," Opposition to Summary Judgment at 15, the document's statement that "collection will be directed to the ESOP" could reasonably be interpreted to mean that collection would not (ever) be directed elsewhere, at least without a subsequent modification or reversal of the decision, which would need to be effected pursuant to the statute. The ambiguous circumstances surrounding the document's Issuance, including the September 1992 letter quoted by Defendant and the "apolog[y] for the confusion" contained in the alleged TAO, suggest Plaintiff was receiving mixed signals from the IRS. He appears to have had reason to believe the government agency was itself confused. Under the circumstances, it seems entirely reasonable to argue that ambiguity created by the IRS should be resolved in favor of the taxpayer. Because pursuing this litigation avenue was not unreasonable, obtaining discovery in regard thereto and presenting the matter to the Court was likewise not unreasonable. Therefore, Plaintiff did not cause the proceedings to be protracted unreasonably and his award of attorney's fees and costs should not be reduced on this basis.

D. COSTS

[36] The United States' argument that "Plaintiff seeks costs not allowable under Section 1920" Opposition at 18, need not be addressed since the Court should determine Plaintiff qualifies as a prevailing party under section 7430. Defendant does argue the cost claimed are unrecoverable under the latter provision.

III. CONCLUSION

[37] Defendant's arguments opposing an award of fees under 26 U.S.C. section 7430 should be rejected. PLaintiff has requested fees totaling $42,614.00 and costs in the amount of $4,171.55, a total of $46,785.55. The Court has examined the Motion and affidavits submitted therewith and concluded they are adequate to support an award of the total amount claimed except to the extent the Affidavit of Joel B. Toomey, Esquire, in Support of Attorney's Fees (Doc. #75), filed on May 11, 1999, lists 297.3 hours as the total expended when the individual entries add up to only 295.6. Therefore, a reduction of $212.50 (1.7 x 125) is appropriate, bringing the total to $46,573.05.

RECOMMENDATION

[38] For the foregoing reasons, it is recommended the Motion (Doc. #69) be GRANTED. Accordingly, the Court should direct the Clerk to enter judgment for Plaintiff and against Defendant in the amount of $46,573.05.

[39] ENTERED at Jacksonville, Florida, this 21st day of July 2000.

                                   Howard T. Snyder

² To conserve judicial resources, the Court will not here provide a comprehensive background discussion. Hence, for a review of the relevant statutory scheme, see the Order at 1-4 and 7-9.

³ Additionally, while perhaps not of great importance (and not relied on in the instant determination), it is noted the letter that Plaintiff argued was a Taxpayer Assistance Order, see discussion infra at part II.C., could also arguably be characterized as "published guidance" pursuant to section 7430(c)(4)(B)(ii). See also section 7430(c)(4)(B)(iv) (defining published guidance to include "private letter rulings, technical advice memoranda, and determination letters" issued to taxpayers). It is also observed the Court has previously characterized the instructions to Form 706 as "generally consistent with Plaintiff's reading of the statutes." Order at 12.

⁴ The Court will accept this proposition in its resolution of the instant matter. For support thereof, see, e.g., United States v. 88.88 Acres of Land, 907 F.2d 106, 107 (9th Cir. 1990) (citing the legislative history of the EAJA, which "states in unmistakable language: 'In determining the value of assets, the cost of acquisition rather than fair market value should be used.'" (quoting H.R. Rep. No. 1418, 96th Cong., 2d Sess. 15 (1980), reprinted in 1980 U.S. Code Cong. & Admin. News 4953, 4984, 4994).

⁵ This similar treatment makes sense despite formal, or tax- related, references to the estate as a "new entity." Opposition at 14. Decedents' estate have not at all places and times been treated as separate legal entities. See, e.g., F.D.I.C. v. Conner, 20 F.3d 1376, 1384 (5th Cir. 1994). They may, depending upon context, be reasonably conceptualized as a temporal extension of the desceased's financial affairs.