- 25 - 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...)Page: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
Last modified: May 25, 2011