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before us. The instant dispute, then, is whether petitioner
incurred any of the costs.
In order for petitioner to incur a litigation cost, within
the meaning of section 7430, he has to have a legal obligation to
pay that cost. Grigoraci v. Commissioner, 122 T.C. 272, 277-278
(2004); Swanson v. Commissioner, 106 T.C. at 101-102. The
corresponding language of EAJA has also been interpreted to
include that requirement. SEC v. Comserv Corp., 908 F.2d 1407,
1414 (8th Cir. 1990).
Petitioner does not direct our attention to, and we have not
found, anything in the record that shows that petitioner is
legally obligated to pay to Moffatt the claimed substantial
amounts. The mere fact that a taxpayer retained counsel who in
fact represented the taxpayer in a proceeding in this Court is
not sufficient to meet this “incurred” requirement of section
7430. See Grigoraci v. Commissioner, 122 T.C. at 278-279 (and
cases there cited).
We have not been favored with any evidence as to the
agreement between petitioner and Moffatt. We are not willing to
assume that petitioner and Moffatt entered into an enforceable
agreement which obligates petitioner to pay to Moffatt the
claimed substantial amounts in order to prosecute a $2,890 case.
We conclude that petitioner has failed to carry his burden of
proving that he incurred the claimed Moffatt attorney fees,
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