Mardi Rustam - Page 12

                                       - 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                       
               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           

Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  Next

Last modified: May 25, 2011