Does the Taxpayers have to litigate the issue of whether the Commissioner of Taxation agreed with them on the reasonableness of their actuarial assumptions?

The Taxpayers point out that during pretrial negotiations the Commissioner eventually agreed with them on the reasonableness of their actuarial assumptions, and the parties reached settlements. This concession by the Commissioner, however, does not mean its previous litigation position was not substantially justified. As we said in Estate of Merchant v. CIR, 947 F.2d 1390, 1395 (9th Cir.1991), "The government's decision to concede, rather than to litigate an arguable legal issue, does not in itself indicate that the government's pre-settlement position was unreasonable."