With no explanation, chose the best option from "A", "B", "C" or "D". the transfer tax and conceded the case, but specifically reaffirmed the ATF’s determination that the “AR16” was a “machinegun.” See Gov’t AF Opp. at 6; Gov’t Ex. 1. Although the Government conceded that Plaintiff was entitled to a refund of the $200 transfer tax, as a matter of law, that concession, without more, does not establish that the Government’s position was not “substantially justified.” See Swanson v. Commissioner, 106 T.C. 76, 94, 1996 WL 62615 (1996) (determining the “substantial justification” of a litigant’s position depends on all the facts and circumstances surrounding a proceeding; the fact that respondent ultimately concedes or loses a ease is not determinative) (emphasis added); see also Estate of Perry v. Comm’r, Internal Revenue, 931 F.2d 1044, 1046 (5th Cir.1991) (<HOLDING>) (emphasis added). In this case, the Government

A: holding that a district court does not have to state on the record that it considered every  3553a factor
B: recognizing that the governments failure to prevail is a factor that may be considered
C: holding that the death of a victim may not be considered an aggravating factor in a homicide sentencing
D: holding that the hgn test may be considered as a factor in determining probable cause
B.