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award appellate fees under that section.16 We begin by observing
that the Court of Appeals cannot independently empower us to make
such an award. See Cooter & Gell v. Hartmarx Corp., 496 U.S.
384, 409 (1990) (reversing that portion of Court of Appeals’
judgment remanding the case to District Court for award of
appellate attorney’s fees as part of Rule 1117 sanction; that
rule does not authorize District Courts to award attorney’s fees
incurred on appeal). Having said that, we are satisfied that
section 7430, unlike the provision at issue in Cooter & Gell,
authorizes trial courts (such as the Tax Court) to award
litigation costs incurred on appeal.
Our conclusion that we may award appellate fees under
section 7430 ultimately rests on the distinction between (1) fee
awards (such as those under section 7430) authorized under “fee-
shifting rules that embody a substantive policy, such as a
16 We are hesitant to phrase the issue (i.e., whether we can
award appellate litigation costs under sec. 7430) in terms of our
“jurisdiction”. See Scarborough v. Principi, 541 U.S. 401, 414
(2004) (Equal Access to Justice Act does not describe what
“classes of cases” the Court of Appeals for Veterans Claims is
competent to adjudicate; rather, it relates only to postjudgment
proceedings auxiliary to cases already within that court’s
adjudicatory authority); see also Kafka & Cavanagh, Litigation of
Federal Civil Tax Controversies, par. 2.01[5], at 2-8 (2d ed.
1997) (Tax Court’s “jurisdiction” to consider a motion for
litigation costs is part and parcel of its jurisdiction over the
underlying action); cf. Rule 270(c) (recognizing that the Tax
Court’s jurisdiction to review an administrative denial of
administrative costs derives from sec. 7430(f)(2)).
17 References to Rule 11 are to Rule 11 of the Federal Rules
of Civil Procedure.
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