- 22 - 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 ofPage: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
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