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“other fees and expenses since August 31, 2002.” Petitioners
also request that we increase the statutory fee limit based on
the expertise of petitioners’ counsel. Respondent objects to the
motions in all respects.
On March 7, 2005, the parties jointly moved pursuant to Rule
141(b) to bifurcate consideration of the issues presented in the
motions. They requested that the Court first decide the “primary
legal issue”, whether respondent has met his burden of proving
that his position in the consolidated cases was “substantially
justified” within the meaning of section 7430(c)(4)(B)(i). If,
and only if, the Court were to decide that issue in petitioners’
favor, then the Court would decide the remaining issues, which
involve the amount of the attorney’s fees and other expenses
properly recoverable by petitioners.5 During a March 14, 2005,
teleconference, counsel for the parties agreed that the Court may
decide the substantial justification issue without a trial or
hearing. On March 17, 2005, the Court issued an order granting
the parties’ joint motion to bifurcate. No trial or hearing has
been held.
Because the parties appear to agree on the underlying facts
necessary for us to reach a decision on the substantial
5 A decision in respondent’s favor on the substantial
justification issue would result in a denial of the motions and
render moot the issues relating to the amount of any recoverable
attorney’s fees or other expenses. See sec. 7430(c)(4)(B).
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