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excess of $110 per hour". Sec. 7430(c)(1)(B)(iii)(emphasis
added.) Respondent would bifurcate petitioners' attorney’s fees
into two time periods and limit petitioners to the statutory rate
for the period in which petitioner was specifically billed at an
hourly rate. In effect, respondent would avail himself of the
benefit of petitioners' fee agreement, while assuming none of
petitioners' burdens under the same agreement.
Respondent's reliance on Marre v. United States, supra, is
misplaced. In Marre, the taxpayer attempted to recover
attorney’s fees greater than those incurred under a contingency
agreement. The present case is factually distinct from Marre.
Petitioners are seeking to recover litigation costs actually
incurred and in an amount which is less than the statutory rate
on average.4
In reviewing the record, we find that petitioners have shown
that all of the costs incurred were related to this case. We
find that petitioners' claimed attorney expenses are not in
excess of $110 an hour and do not exceed costs actually incurred
by petitioners. We hold that petitioners are entitled to recover
litigation costs in the amount of $4,568.94.
To reflect the concessions by the parties,
4 Petitioners' counsel expended 37.9 hours of attorney time in
this case and charged $3,936. This is equivalent to a charge of
$103.85 per hour.
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