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1991-282. Although the Court of Appeals identified many problems
with respondent's position, it did not conclude that respondent's
position was egregious. See Estate of Cervin v. Commissioner,
111 F.3d at 1261.
Merely showing that respondent's position is not
substantially justified is not a special factor because, to be
entitled to litigation costs under section 7430, petitioner is
required to show that respondent took such a position. Sec.
7430(c)(4)(B)(i). Something that is required by a statute cannot
also be the basis for exceptional treatment under the same
statute. See Bayer v. Commissioner, supra. We reject
petitioner's contention that respondent's position was egregious
and therefore a special factor under section 7430, and we
conclude that no special skills justify an increased award in the
instant case. The fees to be awarded will be calculated at the
maximum rate represented by $75 per hour adjusted for cost-of-
living increases since 1986. See Heasley v. Commissioner, 967
F.2d 116, 125 (5th Cir. 1992), affg. in part and revg. in part
T.C. Memo. 1991-189. Petitioner calculates such fees and related
costs as totaling $88,963.56, including fees for services
performed by Cervin and his firm.
Fees for Cervin's Services
Cervin is petitioner's coexecutor and one of petitioner's
two heirs. Cervin is also a shareholder in Thompson & Knight,
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