Haas & Associates Accountancy Corporation - Page 15





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               We first address petitioners’ contention with regard to                
          respondent’s alleged improper use of nontrial evidence in                   
          opposing petitioners’ motion for litigation costs.                          

          Nontrial Evidence                                                           
               Rules 231 and 232 anticipate that evidence may be considered           
          in the context of a motion for litigation costs that was not part           
          of the trial of the underlying substantive tax issues.  For                 
          example, evidence regarding the nature and amount of the fees for           
          which recovery is sought (Rule 231(d)), the specific legal                  
          services rendered (Rule 232(d)(1)), the net worth of the taxpayer           
          (Rule 231(b)(4)), the administrative remedies sought by the party           
          (Rule 231(b)(5)), and delays in the proceeding (Rule 231(b)(6)),            
          constitute evidence that would not typically have been admitted             
          as part of a trial of the underlying substantive tax issues.                
               Court opinions involving claims for litigation costs often             
          consider evidence not previously offered into evidence at the               
          trial of the underlying substantive tax issues.  E.g., O’Bryon v.           
          Commissioner, T.C. Memo. 2000-379 (new evidence considered                  



          4(...continued)                                                             
               (4) Whether, under the qualified offer provisions of sec.              
               7430(c)(4)(E) and in analyzing whether petitioners’ tax                
               liabilities under our prior opinion were equal to or less              
               than what their tax liabilities would have been under the              
               qualified offer, the time value of money should be taken               
               into account.                                                          






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