- 43 - the taxpayer satisfies the qualified offer provisions of subsections (c)(4)(E) and (g) of section 7430. In his motion for an award of reasonable litigation costs petitioner contended as follows: 4. Petitioner’s filing of their Petition stating that an EIC was available satisfies the Qualified Offer Requirements if any needed to obtain Litigation Costs. The Petition itself satisfies notice to the Director of the IRS that the Petition was requesting Litigation costs. The fact that the Appeals office made an internal ruling that Petitioner’s deserved the EIC credit, and yet RESPONDENT’s counsel failed to follow that position satisfies the point that Petitioners availed themselves of the Appeal process satisfies the Appeal element with respect to requesting Legal fees and Costs. [Reproduced literally.] In a telephone conference, petitioner’s counsel informally indicated that his contentions as to the qualified offer provisions were in error and that claim was no longer part of the dispute in the instant case.21 In his opening legal memorandum, petitioner revisits the issue, stating as follows: 21 Compare, e.g., Johnston v. Commissioner, 122 T.C. 124, 126 (2004), affd. 461 F.3d 1162 (9th Cir. 2006), with Downing v. Commissioner T.C. Memo. 2005-73, Item E, regarding the requirement of sec. 7430(g)(1)(C) that the document he “designated at the time it is made as a qualified offer for purposes of this section”. The petition did not include such a designation. Also, Rule 34(b)(8) provides that a claim for litigation costs “shall not be included in the petition in a deficiency or liability action”, so that the petition filing could not constitute a qualified offer. Finally, sec. 7430(c)(4)(E)(ii)(I) provides that the qualified offer alternative is not available to “any judgment issued pursuant to a settlement”; the instant case has been settled.Page: Previous 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Next
Last modified: May 25, 2011