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specialized skill needful for the litigation in
question--as opposed to an extraordinary level of the
general lawyerly knowledge and ability useful in all
litigation. Examples of the former would be an
identifiable practice specialty such as patent law, or
knowledge of foreign law or language. * * * [Id. at
572.]
Applying that reasoning, and leaving aside for the moment the
issue of tax expertise,32 we conclude that the general advocacy
and case management skills of petitioners’ counsel, while
undoubtedly “needful for the litigation”, do not justify a
departure from the statutory rate cap under the “limited
availability of qualified attorneys” exception, however
extraordinary in degree and limited in supply those skills may
be. Cf. Hyatt v. Barnhart, 315 F.3d 239, 251 (4th Cir. 2002)
(“plaintiffs do not contend that expertise in class action
enforcement and procedure is a ‘special factor’ warranting an
increase in the statutory [EAJA] maximum rate”; such expertise
“should certainly not be beyond that possessed or easily acquired
by reasonably competent attorneys”); Animal Lovers Volunteer
Association, Inc. v. Carlucci, 867 F.2d 1224, 1226-1227 (9th Cir.
1989) (rejecting claim that “considerable expertise in appellate
32 See infra Part III.B.2., discussing the “local
availability of tax expertise” factor. We note that, prior to
the addition of that factor to sec. 7430 in 1998, see supra note
15, courts applying sec. 7430 generally held that, inasmuch as
the provision applies exclusively to tax cases, counsel’s tax
expertise did not support the finding of a special factor. See,
e.g., Huffman v. Commissioner, supra at 1150; Cassuto v.
Commissioner, 936 F.2d 736, 743 (2d Cir. 1991), affg. in part and
revg. in part on other grounds 93 T.C. 256 (1989); McWilliams v.
Commissioner, T.C. Memo. 1995-111.
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