Robert T. Cozean - Page 9

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            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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