Estate of Edward J. Kunze, Deceased, Carol Ann Hause, Executor - Page 6




                                        - 6 -                                         
               The statute clearly provides otherwise.  Section 6404(i)               
          grants Tax Court jurisdiction over abatement review actions                 
          brought by taxpayers meeting “the requirements referred to in               
          section 7430(c)(4)(A)(ii)”.  One such requirement referred to in            
          section 7430(c)(4)(A)(ii) is section 2412(d)(2)(B) of title 28 of           
          the United States Code.  Section 7430(c)(4)(D) provides “special            
          rules” for applying the requirements of section 2412(d)(2)(B) of            
          title 28 “for purposes of” section 7430(c)(4)(A)(ii).  (Emphasis            
          added.)  Nothing in the language of section 7430(c)(4)(D) limits            
          its application to awards of costs and fees.  Indeed, without               
          incorporation of section 7430(c)(4)(D) by section 6404(i), there            
          would be no express statutory basis for Tax Court jurisdiction              
          over an action for review of abatement brought by an estate.2a              

               2a Since 28 U.S.C. sec. 2412(d)(2)(B) (1994) (as in effect             
          on Oct. 22, 1986) by its terms applies only to “an individual * *           
          * or * * * any owner of an unincorporated business, or any                  
          partnership, corporation, association, unit of local government,            
          or organization, * * * or a cooperative association”, that                  
          section standing alone does not provide a clear basis to discern            
          whether or how an estate might meet its requirements.  Cf. Estate           
          of Hubberd v. Commissioner, 99 T.C. 335 (1992).  However, prior             
          to enactment of sec. 7430(c)(4)(D), this Court and others held              
          that 28 U.S.C. sec. 2412(d)(2)(B) as used in sec.                           
          7430(c)(4)(A)(ii) should be construed to entitle estates to seek            
          an award of litigation costs.  See, e.g., Estate of Woll v.                 
          United States, 44 F.3d 464, 467-468 (7th Cir. 1994); Estate of              
          Hubberd v. Commissioner, supra.  Recognizing the statutory                  
          ambiguities addressed in those and similar cases, Congress added            
          sec. 7430(c)(4)(D) with the specific intent of clarifying the net           
          worth limitations applicable to estates, trusts, and individuals            
          filing jointly, thereby rendering those cases moot.  See H. Rept.           
          105-148 at 638-639 (1997) (“Although the net worth requirements             
          are explicit for individuals, corporations, and partnerships, it            






Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  Next

Last modified: May 25, 2011