Phillip Lee Allen and Carolyn F. Allen - Page 4




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               trial, to fix and award a reasonable sum. [Allen v.                      
               Commissioner, 246 F.3d 672 (9th Cir. 2000).]                             
               The holding of the Court of Appeals for the Ninth Circuit                
          limits any recovery of costs by petitioners to those incurred                 
          during the period that began 3 days before trial.  Because this               
          Court decided that respondent’s position was substantially                    
          justified, we did not have to consider the other prerequisites to             
          recovery of litigation costs under section 7430.5  The only                   
          requirement of section 7430 that remains in controversy6 is                   
          whether petitioners exhausted their administrative remedies as                
          required by section 7430(b)(1).  See also sec. 301.7430-1(b)(2),              
          Proced. & Admin. Regs.                                                        
                                   FINDINGS OF FACT7                                    
               Petitioners’ residence was damaged by a neighbor’s removal               
          of soil supporting the foundation under petitioners’ residence.               
          Petitioners’ insurance claim ended in disagreement, and suit was              
          filed against the insurance company.  In their pleading,                      
          petitioners sought recovery on several grounds, including the                 


               5 A taxpayer’s failure to meet any of the requirements of                
          sec. 7430 is fatal to their claim for litigation costs.                       
               6 There is no remaining controversy with respect to the                  
          amount of fees petitioners are entitled to if we decide that they             
          did exhaust their administrative remedies.                                    
               7 The parties’ stipulation of facts is incorporated by this              
          reference.  To the extent relevant, our findings in Allen v.                  
          Commissioner, T.C. Memo. 1998-406, and Allen v. Commissioner,                 
          T.C. Memo. 1999-118, are incorporated herein.                                 





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