Jerry and Patricia A. Dixon, et al. - Page 19

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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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