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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
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