Jerry and Patricia A. Dixon, et al. - Page 24

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          attorney misconduct that marred the test case trial by charging             
          him the full amount of petitioners’ attorney’s fees relating to             
          the Tax Court proceedings necessitated by that misconduct,                  
          subject only to the requirement that such amounts have been                 
          reasonably incurred.21  Because that misconduct did not extend to           
          the appellate proceedings, petitioners are relegated to the                 
          applicable fee-shifting provision--section 7430, with its hourly            
          rate cap and eligibility requirements--with regard to their                 
          appellate fee requests.22  Cf. Hutto v. Finney, 437 U.S. 678, 689           
          & n.13, 693 & n.21 (1978) (Court separately analyzes fee awards             
          ordered by the District Court and the Court of Appeals,                     
          respectively; whereas the trial court’s award was adequately                
          supported by its finding of bad faith, the appellate court’s                
          award, not supported by any finding of bad faith at the appellate           
          level, could only be sustained under the Civil Rights Attorneys             

          21 Specifically, sec. 6673(a)(2)(B) provides that, whenever                 
          respondent’s attorneys have unreasonably and vexatiously                    
          multiplied proceedings in this Court, the Court may require the             
          United States to pay the excess attorney’s fees and other                   
          litigation costs reasonably incurred because of such conduct.               
          Although we imposed substantial percentage reductions in our fee            
          awards under sec. 6673(a)(2) in Dixon IV, those reductions were             
          attributable to counsel’s various failures to substantiate their            
          claims in their entirety.                                                   
          22 We note further that (1) sec. 6673(a)(2) by its terms                    
          appears to be limited to Tax Court proceedings, and (2) inasmuch            
          as petitioners filed their appellate fee requests with the Court            
          of Appeals under sec. 7430, our evaluation of those requests                
          under sec. 6673(a)(2) or the bad faith exception arguably would             
          be outside the scope of the Court of Appeals’ mandate.  Cf.                 
          Pollei v. Commissioner, 94 T.C. 595 (1990).                                 

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