Tae M. and Young J. Kim - Page 6

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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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