John M. & Rebecca A. Dunaway - Page 21

                                       - 21 -                                         
               We believe that the out-of-pocket costs for mileage and                
          parking fees incurred by petitioner in order to attend the Court            
          hearing herein are covered by the term “litigation costs” under             
          the language of section 7430(c)(1) that applies to Tax Court                
          litigation.  Section 7430(c)(1), defining reasonable litigation             
          costs, does not contain an exclusive list of items recoverable as           
          litigation costs, especially in light of the paragraph’s use of             
          the word “includes”, as opposed to the word “means”.                        
               We summarize our analysis as follows:  A majority of courts            
          interpreting other Federal attorney’s fee award statutes allow              
          substantiated out-of-pocket costs for postage and delivery and              
          for mileage and parking fees when incurred by pro se litigants;             
          section 7430 uses the expansive, nonexclusive word “includes”, as           
          opposed to “means”, when defining “litigation costs”; and                   
          respondent herein concedes postage and delivery costs to be                 
          recoverable litigation costs under section 7430(c)(1) even when             
          incurred by pro se taxpayers.13                                             

               12(...continued)                                                       
          Commn., 301 P.2d 862, 863 (Cal. 1956) (“Although ‘includes’ is              
          ordinarily not a word of limitation, a legislative declaration              
          that ‘public utility’ includes those performing certain                     
          enumerated services is not a declaration that those performing              
          other services, not encompassed by the services enumerated, are             
          public utilities” subject to control and regulation by the Public           
          Utilities Commission [citations omitted]).                                  
               13  We note that there are no Treasury regulations                     
          promulgated specifically under sec. 7430(c)(1) (relating to                 
          litigation costs).  There are Treasury regulations promulgated              
          under sec. 7430(c)(2) (relating to administrative costs), and               
          they provide (see sec. 301.7430-4(b)(1), Proced. & Admin. Regs.)            
          an enumeration comparable to the specific enumeration of the                
          statutory language of sec. 7430(c)(2).  After such enumeration,             
                                                             (continued...)           




Page:  Previous  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  Next

Last modified: May 25, 2011