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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...)
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