- 19 - 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.Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
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