- 7 -
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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