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The parties agree that an evidentiary hearing is not
required. We base our decision on the pleadings, petitioners’
motion for litigation and administrative costs, petitioners’
supporting affidavits, and the various responses and counter-
responses filed by the parties.
Discussion
A. Background
Section 7430(a) allows, in specified circumstances, for an
award of reasonable litigation and administrative costs
“incurred” in an administrative or court proceeding brought
against the United States in connection with the determination of
any tax, interest, or penalty pursuant to the Internal Revenue
Code. This award for costs is generally available only if the
taxpayer is the “prevailing party”, did not unreasonably protract
the administrative or judicial proceedings, and exhausted
available administrative remedies.5 Sec. 7430(a); see sec.
7430(b)(1) and (3).
Respondent concedes that petitioners are the “prevailing
party” in this matter, that they did not unreasonably protract
the proceedings, and that they exhausted all administrative
remedies. Respondent also concedes that petitioners are entitled
to recover the $60 fee for filing their petition in this case.
5 We may award costs pursuant to sec. 7430 even though we
decide that the underlying case should be dismissed for lack of
jurisdiction. Weiss v. Commissioner, 88 T.C. 1036 (1987).
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