Linda A. Fields - Page 22




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          adjustments with respect to which respondent applied the fraud              
          penalty.  As stated, we have found that respondent was                      
          substantially justified in applying the fraud penalty to his                
          adjustment of the initial, but not the amended, 1991 return.                
          Based on the relative amounts of those adjustments ($487,591 and            
          $46,790, respectively), we allocate 91 percent, or $8,235, of the           
          $9,049 amount to respondent’s adjustment of the initial 1991                
          return.  Petitioner is therefore entitled to recover $22,969 of             
          the fraud defense amount ($31,204 ! $8,235).                                
                    2.  Attorney’s Fees Relating to the Motion                        
               For purposes of section 7430, reasonable litigation costs              
          may include reasonable fees incurred in connection with the                 
          section 7430 proceeding itself, see Powers v. Commissioner, 100             
          T.C. 457, 492 (1993), affd. in part and revd. in part on another            
          issue 43 F.3d 172 (5th Cir. 1995), regardless of the                        
          reasonableness of the Commissioner’s position in the section 7430           
          proceeding.  Bayer v. Commissioner, T.C. Memo. 1991-282 at n.5              
          (citing Commissioner, I.N.S. v. Jean, 496 U.S. 154, 158-166                 
          (1990).  Based on our review of the attorney time entries                   
          submitted by petitioner and the application of the statutory rate           
          caps, we find that petitioner incurred $8,575 of potentially                
          recoverable attorney’s fees in prosecuting the motion ([20 x                
          $140] + [38.5 x $150]).  We further conclude that petitioner is             
          entitled to recover such fees in proportion to her recovery of              






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