- 43 -
detailed in the affidavits of petitioners' counsel, they incurred
no fees with respect to the preparation of their motion.
Petitioners did not, therefore, incur fees in this matter in an
amount greater than $40,000. See Marre v. United States, 38 F.3d
823, 828-829 (5th Cir. 1994); United States v. 122.00 Acres of
Land, 856 F.2d 56 (8th Cir. 1988) (applying sec. 304(a)(2) of the
Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, 42 U.S.C. sec. 4654(a); fees were not
actually "incurred" because the taxpayer had no legal obligation
to pay his attorney's fees); accord SEC v. Comserv Corp., 908
F.2d 1407, 1414 (8th Cir. 1990) (construing the EAJA, which
language the Court did not find to be significantly different
from that in United States v. 122.00 Acres of Land, supra); see
also Frisch v. Commissioner, 87 T.C. 858, 846 (1986) (lawyer
representing himself pro se was not entitled to fees for his own
services because such fees were not paid or incurred).
Because there is no mention in the affidavits of counsel
regarding the liability of petitioners for costs other than fees
incurred after December 1992, we find that petitioners are not
similarly restricted with respect to an award of "reasonable
court costs" under section 7430(c)(1)(A) or those items listed in
section 7430(c)(1)(B)(i) and (ii).
28(...continued)
such payment was made is unclear, the ultimate effect was to
diminish the deterrent effect of the expense involved in seeking
review of, or defending against, unreasonable Government action.
See, e.g., SEC v. Comserv Corp., 908 F.2d 1407, 1413-1415 (8th
Cir. 1990).
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