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sanctions. In so doing, the Court denied petitioners’ requests
for the award of attorney’s fees under section 7430, on the
ground that Dixon III had held that none of them was a
“prevailing party” as defined in section 7430(c)(4). Instead,
the Court awarded fees under section 6673(a)(2), which authorizes
the Tax Court to require the United States to pay excess costs,
expenses, and attorney’s fees whenever the Commissioner’s
attorneys have “multiplied the proceedings in any case
unreasonably and vexatiously”.
On the same date, the Court entered decisions in the test
cases, and the test case petitioners appealed. The Court also
certified for interlocutory appeal the cases of nontest case
petitioners represented by Izen, Jones, and Sticht who had also
participated in the evidentiary hearing and nontest case
petitioners represented by O’Donnell whose cases were the subject
of the Court’s opinion in Gridley v. Commissioner, T.C. memo.
1997-210. These nontest case petitioners also appealed.
C. The Ninth Circuit’s Opinion and
Mandates in These Cases
On November 21, 2001, following extensive motion practice on
jurisdiction and other issues, the Court of Appeals set a
briefing schedule and confirmed that the cases on appeal would be
scheduled before the panel that issued the DuFresne opinion.
Following receipt of opening and reply briefs from test case
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