- 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
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