- 10 -
Accordingly, the Court cautioned that factors such as the novelty
and difficulty of the issues, the undesirability of the case, the
work and ability of counsel, the results obtained, and the
customary fees and awards in other cases, should not be
considered for the purpose of determining whether an increased
award is warranted. Id. at 573; see also sec. 301.7430-
4(b)(3)(iii)(B), Proced. & Admin. Regs.
The Court of Appeals for the Fifth Circuit, citing Pierce v.
Underwood, supra, has explained in similar fashion that the term
"special factor" refers to attorneys who possess nonlegal or
technical abilities, as distinguished from other types of
substantive specializations currently proliferating within the
profession. Perales v. Casillas, 950 F.2d 1066, 1078 (5th Cir.
1992); see also 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). In this regard, the Court of Appeals
for the Fifth Circuit has held that an expertise in tax law, as a
type of "substantive specialization currently proliferating
within the profession", is not a special factor warranting an
hourly fee in excess of that contained in the statute. Powers v.
Commissioner, supra at 183. Furthermore, the Court of Appeals
for the Fifth Circuit has noted that the "limited availability"
of attorneys in a particular field cannot, standing alone,
10(...continued)
language. Pierce v. Underwood, supra at 572.
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