Charles B. Owens and Sally L. Owens - Page 17




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          section 7430.12  Accordingly, we first reduce petitioners’ claim            
          by $2,281.25 (18.25 hours multiplied by the recovery rate of $125           
          per hour claimed by petitioners), leaving potentially recoverable           
          costs in the amount of $8,697.49.                                           
               B.  Allocation of Costs Between the Two Issues                         
               Petitioners have not allocated their costs between the                 
          discharge of indebtedness issue and the penalty issue, nor would            
          we expect them to, given the interrelatedness of the two issues.            
          We therefore allocate petitioners’ remaining eligible costs                 
          between the two issues based on the relative dollar amounts                 
          involved.  See, e.g., Galedrige Constr., Inc. v. Commissioner,              
          T.C. Memo. 1997-485 (25 percent of costs allocated to issue                 
          regarding 25 percent substantial understatement penalty).13                 


               12  Sec. 3101(b) of the Internal Revenue Service                       
          Restructuring and Reform Act of 1998 (1998 Act), Pub. L. 105-206,           
          112 Stat. 728, pushed back the “start date” for recoverable                 
          administrative costs in a deficiency proceeding from the date of            
          the notice of deficiency to the earlier date of the                         
          Commissioner’s “30-day letter.”  That amendment applies to costs            
          incurred after Jan. 18, 1999, the date that is 180 days after the           
          date of enactment of the 1998 Act.  1998 Act sec. 3101(g), 112              
          Stat. 729.                                                                  
               13  Because petitioners did not separately address the                 
          reasonableness of respondent’s position with respect to the                 
          discharge of indebtedness issue and the penalty issue,                      
          respectively, we do not think it appropriate to allocate                    
          petitioners’ costs between those issues on a pro rata basis                 
          (i.e., 50 percent to each issue).  Cf. Heasley v. Commissioner,             
          T.C. Memo. 1991-189, affd. in part and revd. in part 967 F.2d 116           
          (5th Cir. 1992) (taxpayers challenged the reasonableness of the             
          Commissioner’s position with respect to four separate penalties;            
          award of costs proportionate to number of issues on which                   
                                                             (continued...)           





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