Leon L. Sicard and Eleanor Sicard - Page 11

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          pursuant to section 7430.  Petitioners calculated the COLA from             
          1981, but respondent contends that the COLA should be calculated            
          from January 1, 1986.  October 1, 1981, and January 1, 1986, are            
          the respective dates on which COLA's were provided pursuant to              
          the Equal Access to Justice Act (EAJA), 28 U.S.C. sec. 2412                 
          (1994), and section 7430.  Swanson v. Commissioner, 106 T.C. at             
          100.  Section 7430 has its roots in the EAJA, and, during 1986,             
          Congress amended that section to conform it more closely to the             
          EAJA, adopting the EAJA's $75 per hour limitation on attorney's             
          fees and the EAJA's existing COLA language.  Bayer v.                       
          Commissioner, 98 T.C. 19, 24 (1992).  We recently discussed the             
          question of the appropriate date from which the COLA applicable             
          to awards of attorney's fees should be calculated as follows:               
                    Our position on this issue was addressed in Bayer                 
               v. Commissioner, 98 T.C. 19 (1992), where we concluded                 
               that Congress, in providing for cost of living                         
               adjustments in section 7430, intended the computation                  
               to start on the same date the COLA's were started under                
               the EAJA; i.e. October 1, 1981.  Citing Lawrence v.                    
               Commissioner, 27 T.C. 713 (1957), revd. on other                       
               grounds 258 F.2d 562 (9th Cir. 1958), we stated that we                
               would continue to use 1981 as the correct year for                     
               making the COLA calculation, unless, of course, the                    
               Court of Appeals to which appeal lay had held                          
               otherwise.  [Swanson v. Commissioner, supra at 100;                    
               citations omitted.]                                                    
               As noted in our opinion on the merits, petitioners resided             
          in Hampton, New Hampshire, at the time they filed their petition.           
          Consequently, the instant case is appealable to the U.S. Court of           
          Appeals for the First Circuit, which has not addressed the                  
          question of whether the COLA adjustment is to be made from 1981             




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