- 41 -
C. Award of Litigation Costs
As an initial matter, we note that the parties disagree as
to whether the cost of living adjustment (COLA), which applies to
an award of attorney's fees under section 7430, should be
computed from October 1, 1981, or from January 1, 1986.27
Respectively, these are the two dates on which COLA's were first
provided under the EAJA and section 7430.
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. Id.
at 23. 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. Golsen v. Commissioner, 54
T.C. 742, 756-757 (1970), affd. 445 F.2d 985 (10th Cir. 1971).
This case is appealable to the Court of Appeals for the 11th
Circuit, which has not addressed the question of whether 1981 or
1986 is the correct date for purposes of computing the COLA
27
Petitioners are seeking an award of fees based solely upon
the statutorily provided rate of $75 an hour, as adjusted by the
COLA. Sec. 7430(c)(1)(B)(iii). Petitioners have not argued that
there are "special factors" which would justify a higher rate in
this case. Id.
Page: Previous 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 NextLast modified: May 25, 2011