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a matter of law. Rule 121(b); Naftel v. Commissioner, 85 T.C.
527, 529 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344
(1982). We conclude that there is no genuine issue of material
fact precluding us from resolving the question raised in respon-
dent’s motion.
In respondent’s motion, respondent argues that, under
Gustafson v. Commissioner, 97 T.C. 85 (1991), “The doctrine of
res judicata bars an action for administrative costs under
section 7430(f)(2)[3] to the extent the recovery of such costs
could have been pursued in a prior deficiency case.”4 Petition-
ers counter that the doctrine of res judicata is irrelevant to
their claim under section 7430(f)(2).
3Sec. 7430(a) authorizes an award to the prevailing party of
reasonable administrative costs incurred in any administrative
proceeding with the IRS and of reasonable litigation costs
incurred in any civil tax litigation. As pertinent here, sec.
7430(f)(2) provides:
SEC. 7430. AWARDING OF COSTS AND CERTAIN FEES.
(f) Right of Appeal.--
* * * * * * *
(2) Administrative proceedings.–- A decision
granting or denying (in whole or in part) an award for
reasonable administrative costs under subsection (a) by
the Internal Revenue Service shall be subject to the
filing of a petition for review with the Tax Court
under rules similar to the rules under section 7463
(without regard to the amount in dispute). * * *
4Respondent raised the doctrine of res judicata as an affir-
mative defense in respondent’s answer to petitioners’ petition.
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