5 (d) Be an individual whose net worth did not exceed $2 million, or an owner of an unincorporated business, or any partnership, corporation, etc., the net worth of which did not exceed $7 million, when the petition was filed. Sec. 7430(c)(4)(A)(iii); 28 U.S.C. sec. 2412(d)(2)(B). Respondent concedes that petitioner meets this requirement. (e) Establish that the amount of costs and attorney's fees claimed is reasonable. Sec. 7430(a), (c)(1). Recoverable attorney's fees are limited to $75 per hour adjusted for cost of living increases and special factors. Sec. 7430(c)(1)(B)(iii). Respondent contends that petitioner does not meet this requirement. A taxpayer has the burden of proving that it meets each requirement before the Court may order an award of litigation costs under section 7430. Rule 232(e); Estate of Johnson v. Commissioner, 985 F.2d 1315, 1318 (5th Cir. 1993); Gantner v. Commissioner, 92 T.C. 192, 197 (1989), affd. 905 F.2d 241 (8th Cir. 1990); Minahan v. Commissioner, 88 T.C. 492, 497 (1987).2 2 In 1996, legislation was enacted which shifted to the Commissioner the burden of proving whether the position of the United States was substantially justified, sec. 7430(c)(4)(B), as amended by the Taxpayer Bill of Rights 2 (TBR2), Pub. L. 104-168, sec. 701, 110 Stat. 1452, 1463 (1996), and raised the hourly rate for attorney's fees to $110, sec. 7430(c)(1)(B)(iii), as amended by TBR2 sec. 702(a), 110 Stat. 1464. These changes do not apply here because they are effective for proceedings commenced after July 30, 1996. TBR2 secs. 701(d), 702(b), 110 Stat. 1464; see National Industrial Investors, Inc. v. Commissioner, T.C. Memo. 1996-423.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011