Jerry and Patricia A. Dixon, et al. - Page 34

                                       - 34 -                                         
          attorneys for such proceeding, the difficulty of the issues                 
          presented in the case, or the local availability of tax                     
          expertise, justifies a higher rate.”  Sec. 7430(c)(1)(B)(iii).              
          Not surprisingly, petitioners urge us to lift the rate cap, while           
          respondent argues that we have no legal basis for doing so.30  We           
          begin by examining the three examples of special factors in the             
          statute and then discuss other factors that courts have taken               
          into account in this context.                                               
                    1.   Limited Availability of Qualified Attorneys                  
               The Supreme Court has narrowly interpreted the “limited                
          availability of qualified attorneys” factor in the context of the           
          EAJA.  See Pierce v. Underwood, 487 U.S. 552, 571-572 (1988),               
          interpreting 28 U.S.C. sec. 2412(d)(2)(A)(ii).31  Specifically,             
          the Court concluded that such language                                      
               must refer to attorneys “qualified for the proceedings”                
               in some specialized sense, rather than just in their                   
               general legal competence.  We think it refers to                       
               attorneys having some distinctive knowledge or                         

          30 The Hongsermeiers also argue that respondent’s                           
          calculation of the applicable rate caps, see supra Part I.A., is            
          erroneous.  They maintain that a 27.6-point increase in the                 
          relevant CPI figures (i.e., from 151.075 to 178.675) requires a             
          27.6-percent increase in the statutory rate cap.  That argument             
          is based on a misapprehension of the statutory adjustment                   
          formula; it is the relative difference between CPI figures (i.e.,           
          27.6/151.075 = 18.27 percent)--not the arithmetic difference--              
          that determines the adjustment.  See sec. 1(f)(3) (cross-                   
          referenced in flush language of sec. 7430(c)(1)).                           
          31 “The reasoning employed by the courts under the                          
          attorney’s fees provision of the Equal Access to Justice Act                
          applies equally to review under section 7430.”  Huffman v.                  
          Commissioner, 978 F.2d at 1143.                                             

Page:  Previous  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  Next

Last modified: May 25, 2011