Jerry and Patricia A. Dixon, et al. - Page 29

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          imposed by section 7430(c)(4)(A)(ii).27  We address that issue in           
          Part III.F., infra.                                                         
               C.   Substantial Justification Defense                                 
                    1.   Identifying “the Position of the                             
          United States in the Proceeding”                                            
               Under section 7430(c)(4)(B)(i), it is “the position of the             
          United States in the proceeding” that is evaluated under the                
          substantial justification standard.  Typically, the position of             
          the United States in a judicial proceeding for purposes of                  
          section 7430 is set forth in the Commissioner’s answer to the               
          petition.  E.g., Maggie Mgmt. Co. v. Commissioner, 108 T.C. 430,            
          442 (1997).  These proceedings, of course, are anything but                 
          typical.  Although these cases originated with petitions and                
          answers in a tax deficiency setting, the appellate fees at issue            
          are not directly related to those initial pleadings or the                  
          ensuing litigation on the merits.  Rather, the proceedings to               

          27 In Cobell v. Norton, 407 F. Supp. 2d 140, 148 (D.D.C.                    
          2005), the court concluded that the net worth affidavits of the             
          named plaintiffs in the underlying class action “amply satisfy              
          the [net worth] requirements of the [EAJA] statute for the entire           
          class.”  We note that the referenced class includes more than               
          350,000 claimants.  See id. at 145.  Olenhouse v. Commodity                 
          Credit Corp., 922 F. Supp. 489 (D. Kan. 1996), the EAJA case                
          cited by the Norton court for support, is similarly inapposite.             
          The court in Olenhouse, while recognizing that “[e]ach party                
          seeking an award must meet the relevant net worth cap”, id. at              
          492, concluded that the named plaintiffs, “i.e., those who                  
          prosecuted the claim”, id. at 493, were the ones seeking the EAJA           
          award; accordingly, they alone were required to meet the net                
          worth requirement.  The court noted that the Government “has not            
          shown that * * * unnamed members of the class were willing and              
          able to bear the cost of the litigation.”  Id.  That is not the             
          case here.                                                                  

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