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In considering the appellate fee requests, we solicited the
parties’ views as to whether we were limited to section 7430,
cited in their requests, or were instead free to proceed under
section 6673(a)(2), on which we relied in Dixon IV.10 In a May
2005 order, we expressed the view that “there are substantial
obstacles to awarding appellate fees and costs under section
6673(a)(2)”. Shortly thereafter, the Youngs filed a motion in
this Court for attorney’s fees under section 6673 relating to
services performed (and expenses incurred) by Izen on appeal.
In August 2005, the PH petitioners amended their appellate
fee request to assert entitlement under the “bad faith” exception
to the so-called American rule (hereafter, the bad faith
exception), while continuing to rely on section 7430 as an
alternative ground.11 By the amendment, the PH petitioners also
seek interest on the requested fees and expenses from January 17,
2003 (the date of the Court of Appeals’ Dixon V opinion).
In an order dated September 1, 2005, which we incorporate by
reference and reproduce as Appendix A, we concluded that “the
10 Sec. 7430 contains certain conditions and limitations
that do not apply to fee awards under sec. 6673(a)(2). See infra
Parts I.A., I.C.
11 The American rule generally prohibits a Federal court
from awarding attorney’s fees in the absence of a statute or
contract providing for a fee award. Chambers v. NASCO, Inc., 501
U.S. 32, 61 (1991) (Kennedy, J., dissenting) (citing Alyeska
Pipeline Serv. Co. v. Wilderness Socy., 421 U.S. 240, 258-259
(1975)).
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