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attorneys in this matter is not sufficient to meet the
requirements of section 7430. See Thompson v. Commissioner, T.C.
Memo. 1996-468.
Petitioners assert in their affidavits that they have paid
$2,972 of the fees and costs through a direct assessment of their
share of funds in the SEBA Plan. To the extent that petitioners
paid fees and costs through direct assessment of their share of
the SEBA Plan, we would agree that they would have "paid and
incurred" litigation costs. However, the amount of $102,659 paid
by the SEBA Plan as of December 30, 1998, less the $2,972
allegedly paid by petitioners through direct assessment of their
share of the funds in the SEBA Plan, was not "paid or incurred"
by petitioners. Since this amount has been paid by the SEBA
plan, petitioners are not liable for payment of that amount, nor
is there some subsequent event which would cause petitioners to
become liable. In addition, the amount of petitioners'
contingent liability has not yet been incurred, as explained
above.
For the aforementioned reasons, we grant respondent's motion
for summary judgment to the extent of the $102,659 billed and
paid in this matter, except to the extent petitioners have
asserted that $2,972 in payments were made by them through direct
assessment of petitioners' share of funds in the SEBA Plan. With
respect to the $2,972 in legal fees that may have been paid
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