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Circuit awarded attorney’s fees pursuant to section 7430 under
circumstances in which the Commissioner appealed an adverse
decision of the Tax Court in the face of adverse decisions on the
same issue in other courts of appeals. See Allbritton v.
Commissioner, 37 F.3d 183, 184-185 (5th Cir. 1994), affg. T.C.
Memo. 1993-490; Estate of Perry v. Commissioner, 931 F.2d 1044,
1046 (5th Cir. 1991).
In Lychuk v. Commissioner, 116 T.C. at 405-406, we
distinguished the facts of that case from the facts in Wells
Fargo & Co. and Subs. v. Commissioner, supra. We said that, in
Wells Fargo, the services performed by the bank’s employees as to
the capital transaction under consideration “were extraordinary
in the daily course of their employment * * *. They would have
been paid the same salaries regardless of whether the transaction
was consummated.” Lychuk v. Commissioner, supra at 405. By
contrast, in Lychuk (and in the consolidated cases) the employees
spent much or all of their time working on installment contract
acquisitions, and the employees’ compensation “hinged directly on
the number of installment contracts [acquired by ACC]”. Id. at
405. We also stated our belief in Lychuk that PNC Bancorp, Inc.
v. Commissioner, supra, is not “so factually distinguishable from
the instant case [and, by extension, from the consolidated cases]
to support contrary results.” Id. at 407. The issue, then, is
whether the 2000 reversal of this Court by the Court of Appeals
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