- 12 - position in the motion to dismiss for lack of jurisdiction was substantially justified; as we held above, we lack jurisdiction with respect to respondent’s attempt to collect the section 6672 penalty from petitioner. See Moore v. Commissioner, 114 T.C. 171 (2000). Consequently, petitioner is not the prevailing party in the proceeding before us. For the foregoing reasons, petitioner is not entitled to an award of reasonable litigation costs by this Court.12 Conclusion We conclude that respondent’s motion to dismiss must be granted because this Court lacks jurisdiction over respondent’s collection of the underlying section 6672 liability from petitioner. We further conclude that petitioner’s motion for costs must be denied because petitioner is not the prevailing party.13 We have considered all remaining arguments and, to the 12We also note that sec. 7430(c)(1) permits the award of attorney’s fees in excess of the prescribed limitation only where a special factor justifies a higher rate. Petitioner’s claimed rate of $325 per hour far exceeds the prescribed limitation, and petitioner has not demonstrated any special factor justifying such a rate. See sec. 7430(c)(1)(B)(iii). 13We sympathize with petitioner’s argument that respondent’s notice of determination erroneously directed him to this Court. We do not know whether petitioner will refile this case in the District Court. If he does, we express no view herein as to whether he would substantially prevail on the sec. 6672 issue and otherwise qualify for an award of litigation costs. However, if he is otherwise entitled to such an award, we do not intend our holding that he did not substantially prevail on the jurisdictional issue in this Court to affect whether the District (continued...)Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
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