Hoyt W. and Barbara D. Young, et al. - Page 25

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          Having spelled out the argument, the Court of Appeals did not               
          address it.  The Court of Appeals instead framed the issue in               
          terms of whether a prevailing party is entitled to “fees for an             
          intermediate appellate stage of its litigation where it was                 
          unsuccessful”.  Id.   The Court of Appeals upheld the District              
          Court’s award of appellate fees, id., something it could not have           
          done had it believed that the District Court lacked jurisdiction            
          to award those fees.                                                        
                    c.   Conclusion                                                   
               We continue to subscribe to the view that this Court has the           
          authority to consider (and award) both trial fees and appellate             
          fees under section 7430 without the necessity of a separate                 
          filing in the Court of Appeals.  Although we are mindful of                 
          Cummings v. Connell, supra, the forbearance of the Court of                 
          Appeals in Twentieth Century Fox Film Corp. v. Entmt. Distrib.,             
          supra, leads us to believe we are not faced with a situation                
          where we “would surely be reversed” on this issue on appeal.  See           
          Lardas v. Commissioner, 99 T.C. 490, 495 (1992).  Accordingly, we           
          hold that we have jurisdiction to consider the Jones fee request.           
               B.   Paid or Incurred Requirement                                      
               Unlike certain other fee-shifting statutes, section 7430               
          generally allows the recovery of attorney’s fees only to the                
          extent such amounts have been paid or incurred.18  Sec.                     


          18 But see sec. 7430(c)(3)(B), providing an exception for                   
                                                              (continued...)          




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