- 3 - gain realized in connection with the settlement payment.3 After their success in litigation, petitioners filed a motion seeking to recover $46,419.11 of administrative and litigation costs under section 7430.4 In the second opinion, Allen v. Commissioner, T.C. Memo. 1999-118, we decided that respondent’s position was substantially justified under the facts and circumstances of this case. Accordingly, petitioners’ motion for litigation costs (attorney’s fees) was denied. Petitioners appealed the denial of their motion, and the Court of Appeals for the Ninth Circuit, in an unpublished opinion, held as follows: We affirm that part of the tax court’s determination that the respondent was reasonably justifiable in believing that the award was taxable, and accordingly that attorney fees incurred by the taxpayer through the pretrial discovery and negotiating period were not reimbursable. It was, however, an abuse of discretion to deny reimbursement of attorney fees actually incurred by the trial, which should have been abandoned by the Commissioner when all parties knew, three days before trial, that the Commissioner’s witness had recanted and that the [C]ommissioner could not reasonably expect to prevail in the ensuing trial. Accordingly, the order appealed from is vacated and the cause is remanded to the Tax Court to determine, (1) whether the taxpayers have otherwise satisfied the requirements of section 7430 with respect to exhaustion, and not unreasonably protracting the litigation, and (2) if the parties do not agree on the amount due for the costs of 3 Because our holding did not result in an underpayment of tax, we did not have to consider the penalty determined by respondent under sec. 6662(a). 4 Petitioners were also seeking additional attorney’s fees incurred to pursue the motion.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011