13.__Substantially prevails.__"Substantially prevails," with reference to the taxpayer, means that the bureau fails to establish that its position in the proceeding was substantially justified.__The position of the bureau is presumed not to be substantially justified if the bureau did not follow its applicable published guidance in the administrative proceeding. This presumption may be rebutted.__ In determining whether the position of the bureau was substantially justified, the court shall take into account whether the bureau has lost in court on substantially similar issues.

§107.__Prevailing party awarded costs

In any administrative or court proceeding that is brought by or against the bureau or State in connection with the determination, collection, or refund of any tax, interest or penalty under this Title, the prevailing party may be awarded a judgment or a settlement for reasonable administrative costs and reasonable litigation costs, as limited in this section.

1.__Administrative remedies must be exhausted.__A judgment for reasonable litigation costs may not be awarded in any court proceeding unless the court determines that the prevailing party has exhausted the administrative remedies available to that party within the bureau. A failure to agree to an extension of the time for the assessment of any tax may not be taken into account for purposes of determining whether the prevailing party meets the requirements of this subsection.

2.__Only costs allocable to State.__An award under this section may be made only for reasonable litigation and administrative costs that are allocable to the State and not to any other party.

3.__Costs denied where party prevailing protracts proceedings.__An award for reasonable litigation and administrative costs may not be made with respect to any portion of the administrative or court proceeding during which the prevailing party has unreasonably protracted that proceeding.

4.__Period for applying to bureau for administrative costs.__ An award may be made under this section by the bureau for reasonable administrative costs only if the prevailing party files an application with the bureau for those costs before the 91st day after the date on which the final decision of the bureau