dissenting.
I dissent because I believe that the government was substantially justified in arguing that the ladies’ drink credits constituted “payments” under section 6041, and thus that Deja Vu had not satisfied section 530’s filing requirements.
26 U.S.C. § 7430(a) provides that the prevailing party “[i]n any administrative or court proceeding which is brought by or against the United States in connection with... [tax liability] .. .may be awarded ... reasonable litigation costs incurred in connection with such court proceeding,” including attorneys fees. A party is not to be treated as the prevailing party “if the United States establishes that... [its position] .. .in the proceeding was substantially justified.” 26 U.S.C. § 7430(c)(4)(B)(i). The Supreme Court in Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (internal quotation marks omitted), stated that “substantially justified” means “justified in substance or in the main-that is, justified to a degree that could satisfy a reasonable person.” We review the district court’s opinion to deny a prevailing party an award of attorney fees under 26 U.S.C. § 7430 for an abuse of discretion. United States v. Ayres, 166 F.3d 991, 997 (9th Cir.1999).
As the majority correctly states, the district court erred in holding that Deja Vu bore the burden of demonstrating that the government’s position that Deja Vu was not entitled to protection under section 530 of the Revenue Act of 1978 was not substantially justified. Rather, the government had the burden to show that its position that Deja Vu was not entitled to section 530 protection was substantially justified. See 26 U.S.C. § 7430(c)(4)(B).
We now know that the government will fail with its argument in the future because we held in Marlar v. United States, 151 F.3d 962, 969 (9th Cir.1998), that a club does not make a payment when awarding “ladies’ drink credits.” Rather than remand for the district court to apply the corrected burden of proof, the majority relies on Marlar to conclude that the gov-*697eminent was not substantially justified in arguing that the dancers’ drink credits were reportable payments under section 6041, stating “[rjather than remanding for the district court to apply the correct standard, we conclude that the evidence clearly demonstrates that the government’s litigation position was not substantially justified.”
While the majority is entirely correct that this holding prospectively prevents the government from being substantially justified in arguing that the ladies’ drink credits constitute “payments” under section 6041, the majority fails to appreciate the significance of the fact that the present case began before we decided Marlar. It is simply an untenable analytical approach to determine that precedent handed down after a case was filed “relates back” to deprive the filing party of substantial justification for its position at the time of filing.
Rather, a more logical approach would examine JJR, Inc. v. United States, 950 F.Supp. 1037 (W.D.Wash.1997), the only decided case at the time the IRS filed its suit against Deja Vu to address the issue of whether ladies’ drink credits at an adult nightclub constitute payments to the dancers. While JJR did not ultimately determine the status of such credits under section 6041 due to the insufficiency of the government’s evidence as to the sum of the credits, the court’s opinion did directly address the issue, stating that the drink credits “may constitute ‘payments’ for the purposes of § 6041 reports.” Id. at 1045. Such dicta from a district court, with no contrary holding from a higher court, is certainly sufficient to provide a degree of support sufficient to “satisfy a reasonable person” under Pierce, 487 U.S. at 565-66, 108 S.Ct. 2541.
Thus, I can not agree with the majority that the district court abused its discretion in determining that the government did not have a reasonable basis for arguing that Deja Vu failed to satisfy section 530’s requirement that all necessary forms and reports be filed in relation to the ladies’ drink credits. A district court opinion with no contrary higher court opinion is clearly sufficient to provide a reasonable basis for a litigation theory, and the determination by the district court that reliance on such an opinion provides such a basis is not an abuse of discretion. A post hoc analysis of the case using precedent not in existence at the time the case was filed is inappropriate. Rather than reversing, we should simply remand to the district court so that it may apply the appropriate burden of proof.