Mark and Valerie Kruse - Page 7




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          because they were and remain legally obligated to pay any and all           
          litigation costs and expenses, not paid by the SEBA Plan.                   
               By virtue of the requirement that attorney's fees have been            
          "incurred" by the party, section 7430 differs from some other               
          fee-shifting statutes.                                                      
               Unlike the Civil Rights Attorneys Fees Awards Act,                     
               which provides for allowance of "a reasonable                          
               attorney's fee as part of the costs," or the FOIA                      
               provision which permits payment of "other litigation                   
               costs reasonably incurred," section 7430 is more                       
               narrowly drawn.  * * * The plain language of the                       
               statute controls here * * *. * * * The common meaning                  
               of the word incur is "to become liable or subject to:                  
               bring down upon oneself." * * * [Frisch v.                             
               Commissioner, 87 T.C. 838, 846 (1986).]                                
          "The simple truth is that the plain language of section 7430                
          * * * is limited to actual expenditures."  Id. at 845-846.  In              
          analogous circumstances, it has been held that fees are incurred            
          when there is a legal obligation to pay them.  United States v.             
          122.00 Acres of Land, 856 F.2d 56 (8th Cir. 1988) (applying sec.            
          304(a)(2) of the Uniform Relocation Assistance and Real Property            
          Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1906,            
          1984, 42 U.S.C. 4654(a) (1970); attorney's fees were not actually           
          incurred because the party claiming them had no legal obligation            
          to pay them); accord SEC v. Comserv Corp., 908 F.2d 1407, 1414-             
          1415 (8th Cir. 1990) (construing to a similar effect the Equal              
          Access to Justice Act, codified at 5 U.S.C. sec. 504 and 28                 
          U.S.C. sec. 2412 (1994)); see also Republic Plaza Properties                
          Partnership v. Commissioner, T.C. Memo. 1997-239.                           





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