Jerry and Patricia A. Dixon, et al. - Page 40

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          affg. in part and revg. in part on other grounds 93 T.C. 256                
          (1989); Fields v. Commissioner, T.C. Memo. 2002-320; see also In            
          re Sealed Case 00-5116, 254 F.3d 233, 237 (D.C. Cir. 2001) (EAJA            
          case).                                                                      
               We agree with the majority view and conclude that                      
          disregarding the section 7430 rate cap on the basis of the                  
          attorney misconduct in this litigation would improperly add a               
          punitive aspect to the fee award.  Stated differently, such an              
          approach would blur the distinction between fee-shifting                    
          provisions and punitive measures that the Supreme Court has drawn           
          in cases such as Cooter & Gell v. Hartmarx Corp., 496 U.S. at               
          409, and Chambers v. NASCO, Inc., 501 U.S. at 51-55.  See supra             
          Part I.B.  As the dissent in Jean v. Nelson, 863 F.2d at 782                
          (Kravitch, J., dissenting), observed in reasoning that Government           
          misconduct should not be treated as a special factor under the              
          EAJA:  “Rule 11 sanctions are always available to compensate ‘a             
          litigant whose opponent acts in bad faith in instituting or                 
          conducting litigation.’”  Here, the acknowledged misdeeds of                
          McWade and Sims have been the subject of sanctions under section            
          6673(a)(2)(B) with respect to proceedings at the trial level.               
          See supra Part I.C.  Such misconduct is relevant to our present             
          task only in relation to the threshold issue under section 7430             
          of whether respondent’s position regarding the legal                        
          ramifications of the misconduct was substantially justified.  See           
          supra Part II.C.                                                            




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