- 9 -
exceed $104 per hour, similar limitations must apply with respect
to the accountants' charges.8
In Pierce v. Underwood, 487 U.S. 552 (1988), the Supreme
Court addressed whether "special factors" existed which entitled
a party, who settled a dispute with the Government, to an award
of attorney's fees in excess of the general statutory cap of $75
per hour (adjusted for inflation).9 The Court explained that in
order for the "limited availability of qualified attorneys" to
constitute a special factor warranting departure from the $75
cap, there must be a limited availability of attorneys who
possess distinctive knowledge or a specialized skill needful to
the particular litigation in question, as opposed to an
extraordinary level of general lawyerly knowledge.10 Id. at 572.
8 Since petitioner requests costs with respect to Ms.
Zimmerman's services at a maximum rate of $92 per hour, we fail
to grasp respondent's objection insofar as it pertains to that
amount. Accordingly, since the hourly rate billed by Ms.
Zimmerman did not exceed $104 per hour, and because respondent
does not otherwise contest the costs sought by petitioner with
respect to Ms. Zimmerman's services, we deem respondent to have
conceded petitioner's claim to that extent.
9 Although the dispute in Pierce v. Underwood, 487 U.S. 552
(1988), arose under the provisions of the Equal Access to Justice
Act (EAJA), 28 U.S.C. sec. 2412(d)(1994), the relevant provisions
of the EAJA are almost identical to the language of sec. 7430.
Powers v. Commissioner, 43 F.3d 172, 183 (5th Cir. 1995), affg.
in part and revg. in part T.C. Memo. 1993-125 and 100 T.C. 457
(1993). We, therefore, consider the holding in Pierce v.
Underwood, supra, to be applicable to the case before us.
10 As examples of attorneys possessing distinctive
knowledge or specialized skill, the Court included patent
attorneys and attorneys with knowledge of foreign law or
(continued...)
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