147 T.C. No. 13
UNITED STATES TAX COURT
DAVID B. GREENBERG, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 9840-15. Filed November 9, 2016.
P, an attorney, seeks an award of administrative costs with
respect to an administrative proceeding in which P represented a
taxpayer.
Held: I.R.C. sec. 7430 permits only a “prevailing party” to
receive an award of reasonable administrative costs. Only a party to
the underlying proceeding can be a prevailing party. Because P was
not a party to the underlying administrative proceeding, he cannot be
a prevailing party under the statute. Therefore P is not the proper
party to file a claim under I.R.C. sec. 7430, and we lack jurisdiction.
David B. Greenberg, pro se.
Ladd Christman Brown, Jr., for respondent.
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OPINION
PUGH, Judge: Petitioner seeks review of respondent’s decision to deny
petitioner’s application for an award of administrative costs under section 7430.1
This case is before the Court on respondent’s motion to dismiss for lack of
jurisdiction. Respondent’s motion asserts that petitioner is not the proper party to
file a claim under section 7430(f)(2).
Background
The following facts are not disputed.
Petitioner, an attorney and resident of Florida, seeks the award of
administrative costs (his attorney’s fees) with respect to an earlier administrative
proceeding in which he represented a taxpayer (his client) before the Internal
Revenue Service (IRS) pursuant to a power of attorney. His client’s matter
eventually was resolved. Petitioner was owed fees for this representation that
remain outstanding, and his client agreed that petitioner would receive any
administrative fees awarded under section 7430.
On September 17, 2014, petitioner sent a letter to the IRS applying for
administrative costs under section 7430 on behalf of his client. On December 27,
1
Unless otherwise indicated, all section references are to the Internal
Revenue Code of 1986, as amended, in effect at all relevant times.
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2014, petitioner sent another letter requesting the award of administrative costs on
his own behalf. Petitioner discussed the award of administrative costs with an IRS
Appeals officer. The Appeals officer did not award them. Petitioner then filed his
petition on April 15, 2015.
In his petition, petitioner originally argued that he was assigned the right to
pursue the award by his client and therefore has the right to seek attorney’s fees on
his own behalf. In his response to respondent’s motion to dismiss for lack of
jurisdiction, petitioner conceded that the Anti-Assignment Act, 31 U.S.C. sec.
3727(b) (2012), bars the assignment of a legal suit against the U.S. Government.
In his response petitioner clarified that he was pursuing the claim as it related to
his own rights and not on behalf of his former client. As petitioner has dropped
that argument, we will not address the Anti-Assignment Act and will address
petitioner’s arguments only as they relate to what right he possesses in his
individual capacity to claim administrative costs.
Discussion
I. Jurisdiction Generally
The Tax Court is a court of limited jurisdiction. We may exercise
jurisdiction only to the extent expressly provided by statute. Breman v.
Commissioner, 66 T.C. 61, 66 (1976). Whenever it appears that we may not have
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jurisdiction, we must address that question; and we have jurisdiction to do so.
Stewart v. Commissioner, 127 T.C. 109, 112 (2006); Wheeler’s Peachtree
Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 179 (1960). In doing so we are
mindful that the Supreme Court has “endeavored in recent years to ‘bring some
discipline’ to the use of the term ‘jurisdictional.’” Gonzalez v. Thaler, 565 U.S.
___, ___, 132 S. Ct. 641, 648 (2012) (quoting Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 435 (2011)); see Henderson, 562 U.S. at 435 (“We have
urged that a rule should not be referred to as jurisdictional unless it governs a
court’s adjudicatory capacity, that is, its subject-matter or personal jurisdiction.”);
Lippolis v. Commissioner, 143 T.C. 393, 396 (2014).
Historically, this Court has treated the issue of who is a proper party to file a
petition as jurisdictional. See Greenoak Holdings Ltd. v. Commissioner, 143 T.C.
170 (2014) (holding that this Court lacks jurisdiction over a petition filed under
section 6330 by a party who is neither the taxpayer nor an authorized
representative of the taxpayer because “person”, as it is used in the statute, refers
to the party owing the tax); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975) (“[I]t
is well settled that unless the petition is filed by the taxpayer, or by someone
lawfully authorized to act on his behalf, we are without jurisdiction.”); Bella Vista
Chiropractic Tr. v. Commissioner, T.C. Memo. 2003-8 (granting the
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Commissioner’s motion to dismiss for lack of jurisdiction where the taxpayer
failed to show that the person who filed the petition was a duly appointed trustee);
see also Brannon’s of Shawnee, Inc. v. Commissioner, 71 T.C. 108, 113 (1978)
(“[T]his Court has historically viewed capacity as a major element necessary to
invoke its jurisdiction.”). Whether petitioner is a proper party to file a claim under
section 7430 is a jurisdictional question, and we now turn to whether petitioner is
a proper party.
II. Section 7430
If the requirements of section 7430 are met, a party may recover from the
Commissioner certain costs (including attorney’s fees) incurred in connection with
administrative proceedings in which the party prevails. Sec. 7430(a), (c)(2)(B).
Section 7430(a) provides in part:
SEC. 7430. AWARDING OF COSTS AND CERTAIN FEES.
(a) In General.--In any administrative or court proceeding
which is brought by or against the United States in connection with
the determination, collection, or refund of any tax, interest, or penalty
under this title, the prevailing party may be awarded a judgment or a
settlement for--
(1) reasonable administrative costs incurred in
connection with such administrative proceeding within the
Internal Revenue Service * * *
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Section 7430(f)(2) grants the Court jurisdiction over petitions filed to
contest a decision denying administrative costs. It provides, in part: “A decision
granting or denying (in whole or in part) an award for reasonable administrative
costs under subsection (a) by the Internal Revenue Service shall be subject to the
filing of a petition for review with the Tax Court”.
In his motion to dismiss respondent argues that section 7430 permits only a
“prevailing party” to seek an award of administrative costs and that petitioner is
not a prevailing party under section 7430 because he was not a party to the
underlying proceeding.
III. Proper Party Under Section 7430
A. “Prevailing Party” Under Section 7430
Section 7430(f)(2) does not specify who may file a petition. The only
limitation on claimants appears in section 7430(a), which limits awards of
administrative costs to a “prevailing party”. See, e.g., Grant v. Commissioner, 103
F.3d 948, 951 (11th Cir. 1996) (“Under the statute, a judgment for costs may be
entered in favor of the taxpayer if he 1) was the ‘prevailing party,’ 2) has
exhausted all available administrative remedies and 3) did not unreasonably
protract the proceedings.”), aff’g T.C. Memo. 1995-374; Wilfong v. United States,
991 F.2d 359, 364 (7th Cir. 1993) (“Before litigation costs may be awarded under
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section 7430(a), the taxpayer must be a ‘prevailing party’ under subsection
7430(c)(4).”).
Embedded in that term are two requirements: first that the claimant be a
“party” and second that the claimant be “prevailing”. As to “party”, section
7430(c)(4) provides that “[t]he term ‘prevailing party’ means any party in any
proceeding to which subsection (a) applies (other than the United States or any
creditor of the taxpayer involved)”. Under our historic analysis of our jurisdiction,
discussed above, if petitioner is not a “party” as that word is used in section
7430(c)(4), then he could not be a prevailing party, and we lack jurisdiction
because he is not the proper party to file a petition. Conversely, if petitioner is a
“party” under section 7430(c)(4), then he could be a prevailing party under section
7430(a), and we would have jurisdiction to consider whether, under facts to be
presented at trial or on motions, petitioner is a prevailing party.
In Estate of Palumbo v. United States, 675 F.3d 234 (3d Cir. 2012), the U.S.
Court of Appeals for the Third Circuit held that the party seeking the
administrative costs must be a party to the underlying action to be a “prevailing
party”. The party seeking administrative costs, the Estate of Antonio J. Palumbo
(Estate), argued that a charitable trust should be considered the prevailing party for
purposes of the net worth requirement in section 7430 because it was the sole
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residuary beneficiary of the estate, including the disputed tax liability and any
potential payment of administrative costs, if awarded.2 The Court of Appeals
rejected that argument and held that the net worth requirement applied to the
“prevailing party” and that the prevailing party had to be a party to the underlying
dispute. Id. at 240. Since the Estate was a party to the underlying dispute and the
charitable trust was not, the Estate was the prevailing party and the net worth
requirement applied to it. Id.
In its analysis, the Court of Appeals distinguished two of our Memorandum
Opinions that had considered the net worth requirement as applied to taxpayers
who were not parties to those particular cases. See Young v. Commissioner, T.C.
Memo. 2006-189, 2006 WL 2564109; Dixon v. Commissioner, T.C. Memo. 2006-
97, 2006 WL 1275497 (test cases). The taxpayers in the test cases were among
many participants in certain tax shelters who had filed petitions in this Court.
Most of the additional participants entered into “piggyback” agreements in which
they agreed that their cases would be resolved in accordance with the Court’s
opinions in the test cases. Eventually, more than 300 of these non-test-case
2
Under sec. 7430(c)(4)(A)(ii), as an organization exempt from taxation
under sec. 501(a), the charitable trust would have had no net worth limitation.
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participants made contributions to a fund that was created to share the cost of
litigating the test cases.
After the resolution of the underlying issues, the participants in the two test
cases and some of the other participants sought the award for administrative costs
under section 7430. The Court held in the test cases that the net worth
requirement would be applied to each participant individually, even though the
non-test-case participants were not parties to the test cases. In so holding, the
Court stated that “[t]he case for looking beyond the named parties is particularly
compelling in these proceedings, where similarly situated taxpayers not only
shared the costs of the litigation but also ‘had rights at stake in the case on the
merits’”. Young v. Commissioner, 2006 WL 2564109, at *8 (quoting Dixon v.
Commissioner, 2006 WL 1275497, at *9).
In distinguishing its decision from the decisions in the test cases, the Court
of Appeals in Estate of Palumbo, 675 F.3d at 243-244, stated that “[w]e believe
Dixon’s exception is narrowly cabined to situations involving complex tax
litigation where similarly situated taxpayers have foregone [sic] individual
litigation to further their independent legal claims and shared in the costs of their
representative litigation.” Here, of course, petitioner (similar to the charitable
trust in Estate of Palumbo) had no independent legal claim at stake in the
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underlying proceeding but rather a derivative claim as a beneficiary of a possible
section 7430 award.
The Court of Appeals’ decision in Estate of Palumbo relied on cases
decided under 28 U.S.C. sec. 2412 (a fee-shifting statute under the Equal Access
to Justice Act (EAJA)). Like section 7430, the EAJA fee-shifting statute provides
that a prevailing party may seek a judgment for attorney’s fees. Equal Access to
Justice Act, 28 U.S.C. sec. 2412(b) (“[A] court may award reasonable fees and
expenses of attorneys * * * to the prevailing party in any civil action brought by or
against the United States or any agency or any official of the United States acting
in his or her official capacity[.]”). In addition, the term “prevailing party” in
section 7430(c)(4)(A)(ii) is defined partially by cross-reference to the EAJA’s net
worth requirement (specifically, “the requirements of the 1st sentence of section
2412(d)(1)(B) of title 28, United States Code (as in effect on October 22, 1986)
except to the extent differing procedures are established by rule of court and meets
the requirements of section 2412(d)(2)(B) of such title 28 (as so in effect)”).
Further evidence of the parallels between these provisions is found in the EAJA,
which excludes from its coverage administrative costs to which section 7430
applies. 28 U.S.C. sec. 2412(e).
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Cases applying the EAJA similarly have required the “prevailing party” to
be a party to the underlying proceeding. In Sw. Marine, Inc. v. United States, 43
F.3d 420 (9th Cir. 1994), a subcontractor applied for attorney’s fees under the
EAJA, after being awarded an adjustment to a contract price, through its general
contractor, Southwest Marine, Inc. The District Court granted the Government’s
motion to dismiss, and the U.S. Court of Appeals for the Ninth Circuit affirmed
the District Court’s dismissal because the subcontractor was not a party to the
underlying dispute and “[t]he language of the statute * * * only allows fees to a
prevailing ‘party.’” Id. at 423; see also R.C. Constr. Co. v. United States, 42 Fed.
Cl. 57 (1998) (similarly rejecting claim made on behalf of subcontractor); Alaskan
Arctic Gas Pipeline Co. v. United States, 19 Cl. Ct. 211, 217 (1990) (“ITA (Arctic)
fails the first test * * * [of four EAJA threshold eligibility requirements] because,
quite simply, it cannot be viewed as a prevailing party without having been a
plaintiff in the original action.”). The Court explained that the “language must be
strictly construed in order to avoid an unintended expansion of the waiver of
sovereign immunity.” Sw. Marine, Inc., 43 F.3d at 423. The Court of Appeals
also held that the net worth limitation applied to Southwest Marine, Inc., which
was a party to the underlying action, rather than the subcontractor, even though the
subcontractor paid for the litigation. Id.
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Treating the attorney representing a party in an underlying proceeding as a
possible prevailing party also conflicts with the express requirement of section
7430(a) that the administrative costs be “incurred” by the prevailing party. The
most natural reading is that eligible administrative costs must be paid by the
prevailing party, not charged by the prevailing party. Reeves v. Astrue, 526 F.3d
732, 735 (11th Cir. 2008) (holding, in its interpretation of a fee-shifting statute in
the EAJA, that “the statute’s explicit reference to the ‘prevailing party’
unambiguously directs the award of attorney’s fees to the party who incurred those
fees and not to the party’s attorney”).
We previously have held that fees are ‘incurred’ when there is a legal
obligation to pay them. See Young v. Commissioner, 2006 WL 2564109, at *9;
see also, e.g., Morrison v. Commissioner, 565 F.3d 658, 662 (9th Cir. 2009) (“[A]
taxpayer can ‘incur’ attorneys’ fees if he assumes either: (1) a noncontingent
obligation to repay the fees advanced on his behalf at some later time; or (2) a
contingent obligation to repay the fees in the event of their eventual recovery.”),
rev’g T.C. Memo. 2006-103; Swanson v. Commissioner, 106 T.C. 76, 101-102
(1996) (holding that a taxpayer could not recover section 7430 costs in excess of
the noncontingent part of the attorney’s fee contract where the taxpayer had agreed
to pay the attorney a $40,000 set fee, while agreeing to pay the attorney more if
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costs were awarded under section 7430 in excess of $40,000 because the taxpayer
had no legal obligation to pay the fee and therefore did not incur expenses in
excess of $40,000). Regardless of whether petitioner’s fee arrangement with his
client was contingent on the award of administrative costs under section 7430,
petitioner was to be the recipient of any fees; he did not “incur” any fees. See
United States v. McPherson, 840 F.2d 244, 245 (4th Cir. 1988) (holding that an
attorney representing himself could not recover section 7430 costs because a
petitioner could recover section 7430 costs only for fees actually paid or incurred,
and, having paid no fees for legal services nor having incurred any debts that
remained outstanding, the attorney did not incur fees for the services he provided
himself); Frisch v. Commissioner, 87 T.C. 838, 845-846 (1986) (“The simple truth
is that the plain language of section 7430 cannot be read to include lost
opportunity costs, but is limited to actual expenditures.”).
The definition of “reasonable administrative costs” in section 7430(b)(2)
and (c)(2)(B) supports this reading as it includes “reasonable fees paid or incurred
for the services of attorneys”, sec. 7430(c)(1)(B)(iii), and lumps such fees with
“reasonable expenses of expert witnesses”, sec. 7430(c)(1)(B)(i), and “the
reasonable cost of any study, analysis, engineering report, test, or project”, sec.
7430(c)(1)(B)(ii), that is, fees charged by third parties. Treating these named
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service providers as parties in the case who then may seek an award of their own is
not consistent with, or supported by, the structure of the statute. Panola Land
Buying Ass’n v. Clark, 844 F.2d 1506, 1511 (11th Cir. 1988) (holding, with
regard to the EAJA, that “Congress did not intend that all persons performing
services to the prevailing party in the litigation be allowed to become parties in the
case to assert their claims for compensation”).
Finally, the legislative history of section 7430 also supports our conclusion
that only a party to the underlying action may pursue an award. Before
amendment in 1988, section 7430 permitted only parties in litigation against the
IRS to seek litigation costs; it did not permit parties to seek administrative costs.
In 1988 Congress amended section 7430 to permit prevailing parties in
administrative proceedings to seek awards of administrative costs. Technical and
Miscellaneous Revenue Act of 1988, Pub. L. No. 100-647, sec. 6239(a), 102 Stat.
at 3743. Section 7430(f) was added as well, providing the mechanism for the
prevailing party seeking the award of administrative costs, who was not already
before the Court, to petition the Court after the application for administrative costs
was denied. Id., 102 Stat. at 3746.
Here, petitioner was acting as his client’s representative pursuant to a power
of attorney and was not a party in the underlying dispute. He seeks to recover fees
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he charged (but has not received from) his client, not costs he incurred. Because
he was not a party to the underlying dispute and therefore cannot be a prevailing
party, he is not the proper party to petition the Court for review of respondent’s
denial of an award for administrative costs, and we lack jurisdiction to decide this
case.
B. Petitioner’s “Real Party in Interest” Argument
Petitioner counters that he was entitled contractually to any award to his
client of administrative costs and therefore is the real party in interest. As the real
party in interest, he argues, he has a right to claim administrative costs on his own
behalf and therefore is a proper petitioner in this case. In support, he cites Marré
v. United States, 117 F.3d 297 (5th Cir. 1997). In Marré, the U.S. Court of
Appeals for the Fifth Circuit held that the taxpayer’s counsel was the real party in
interest and therefore the Government could not use attorney’s fees awarded to the
taxpayer under section 7430 to offset the other tax liabilities of the taxpayer. Id. at
304. The Court of Appeals further held that the attorney’s fees were payable
directly to the attorney. Id.
In Marré, the suit seeking the administrative costs was filed on behalf of the
taxpayer who was a party to the underlying proceeding, not on behalf of the
attorney who represented the taxpayer. Consequently, the Court of Appeals
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addressed only who is entitled to receive payment of administrative costs once
awarded to the taxpayer and whether that award could be used to offset other
liabilities of the taxpayer, not whether an attorney can apply (and then petition us)
for administrative costs on his own behalf. That a party might be the real party in
interest does not make him the prevailing party with the right to apply for
administrative costs under section 7430. See Estate of Palumbo, 675 F.3d at 238
(“The fact that the Charitable Trust stood to benefit from the Estate obtaining a tax
refund, as well as any award of fees, does not mean that it was a ‘prevailing party’
that incurred fees as is required under section 7430.”). Whether petitioner was the
real party in interest does not change our conclusion that he was not the prevailing
party and therefore is not entitled to seek an award of administrative costs under
section 7430.3
Furthermore, in the test cases, we treated non-test-case taxpayers as real
parties in interest and applied the net worth requirement to each individually in
part because each had independent legal rights at issue, unlike petitioner.
3
In Greenoak Holdings Ltd. v. Commissioner, 143 T.C. 170, 176 (2014),
the petitioners similarly urged us to read “‘person’ [in sec. 6330] broadly so as to
include any third party claiming an ownership right in property that might be
subject to levy to collect the unpaid taxes of another person.” There too we
declined to extend the rights of a “person” conferred under sec. 6330 to anyone
other than the taxpayer owing the tax (or the authorized representative of that
taxpayer). Id. at 177-179.
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IV. Other EAJA Authorities
Other cases that we identified that interpret “prevailing party” in the EAJA
also consistently held, or treated as settled law, that an attorney representing a
party in the underlying action lacks standing to apply for attorney’s fees.
In Panola Land Buying Ass’n, the U.S. Court of Appeals for the Eleventh
Circuit rejected on jurisdictional grounds a motion to intervene to seek attorney’s
fees under the EAJA brought by a former attorney (Ebbinghouse) of the party in
the underlying action (Panola). Panola had entered into a conditional settlement
agreement stipulating that it would not seek attorney’s fees. After the conditional
settlement agreement was filed with the clerk of the court presiding over the
underlying action, Ebbinghouse filed a motion to intervene to seek attorney’s fees
on his own behalf. The Court of Appeals held that Ebbinghouse could not
intervene, summarizing its analysis and holding as follows: “Examination of the
language and purpose of that source and of the history of Federal fee-shifting
statutes makes it clear that the EAJA does not afford Ebbinghouse party status to
assert a legally protectable right.” Panola Land Buying Ass’n, 844 F.2d at 1509.
In Oguachuba v. INS, 706 F.2d 93 (2d Cir. 1983), the U.S. Court of Appeals
for the Second Circuit similarly held that a party’s attorney could not apply for
attorney’s fees on his own behalf. In Oguachuba, the party’s (Oguachuba’s)
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counsel originally applied for attorney’s fees in his own name. After the
application was rejected, Oguachuba filed a notice of appeal in his own name.
The Court of Appeals held that “the statute allows an award of ‘fees and other
expenses’ to the ‘prevailing party’ * * *. * * * Under the circumstances and given
the statutory language, we believe that counsel has no standing to apply to the
public fisc for payment. If the instant appeal were simply based upon the
application filed by Oguachuba’s lawyer in his own behalf, we would thus be
forced to dismiss.” Id. at 97-98. The Court of Appeals noted its doubt that the
substitution cured the defect in the initial application but went on to reject
Oguachuba’s application for attorney’s fees on the merits.
In deciding other issues arising under the EAJA, courts also have concluded
that attorneys lack standing to apply for attorney’s fees on their own behalf. The
Court of Appeals for the Federal Circuit in Phillips v. GSA, 924 F.2d 1577, 1582
(Fed. Cir. 1991), stated that “[a]s the statute requires, any fee award is made to the
‘prevailing party,’ not the attorney. Thus, Phillips’ attorney could not directly
claim or be entitled to the award. It had to be requested on behalf of the party.”
See also FDL Techs., Inc. v. United States, 967 F.2d 1578, 1580 (Fed. Cir. 1992)
(rejecting a claim that an attorney’s fee award should be paid directly to the
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attorney because “[b]y its terms, [EAJA] § 504(a)(1) states that the fee award is
made to a prevailing party, not the prevailing party’s attorney”).
In Manning v. Astrue, 510 F.3d 1246, 1252 (10th Cir. 2007), the U.S. Court
of Appeals for the Tenth Circuit held that the EAJA attorney’s fee award is paid to
the plaintiff and not her attorney, adding that
[f]urther support for the conclusion that the EAJA award is for the
prevailing party and not for the attorney is the settled law that the
attorney does not have standing to apply for the EAJA fees; that right
belongs to the prevailing party. Just as a prevailing party cannot
assign her underlying substantive action, she cannot assign her right
to seek attorney’s fees, which is derivative of the underlying
substantive action, to her attorney. Only after the prevailing party
exercises her right to seek an award of attorney’s fees under the
EAJA and obtains an award may her attorney pursue collection of the
attorney’s fees. * * * [Citations omitted.]
Similarly in Stephens ex rel. R.E. v. Astrue, 565 F.3d 131 (4th Cir. 2009), the U.S.
Court of Appeals for the Fourth Circuit found the fact that attorneys did not have
standing to apply for EAJA fees supported its holding that attorney’s fees are
payable to the prevailing party and not the attorney.
V. Petitioner’s Application for Attorney’s Fees and Timeliness of Petition
Section 7430(f)(2) provides that the Commissioner must make a decision on
the application for administrative costs before a petition may be filed. Under
section 301.7430-2(c)(6), Proced. & Admin. Regs., if the Commissioner does not
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respond to an application for administrative costs within six months, the failure to
respond can be considered a decision of the Commissioner denying the award.
In supplemental briefing respondent argues that the petition is untimely
because it was filed on April 15, 2015, before the application petitioner filed on
December 27, 2014, was denied or deemed denied under section 301.7430-2(c)(6),
Proced. & Admin. Regs. Petitioner argues first that his petition relates to his
application filed (on behalf of his client) on September 17, 2014, and that his
December 27, 2014, letter merely amended the original application, and second,
that even if the December 27, 2014, letter is considered his application, the IRS
orally denied it therefore giving him the right to file a petition.
Because we decide this case on other grounds, we do not reach the question
of which of petitioner’s two letters requesting administrative costs should be
considered petitioner’s application for purposes of section 7430(f), or whether an
oral denial would constitute a decision for purposes of section 7430(f)(2) that
would allow petitioner to file a petition before six months had elapsed. We
therefore do not reach the question of whether the petition was timely filed.
VI. Conclusion
We hold that petitioner was not a party to the underlying administrative
proceeding but rather acted on behalf of the party in that underlying proceeding.
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Therefore, petitioner cannot be a prevailing party under section 7430 because
section 7430 limits awards of administrative costs to prevailing parties only.
Because petitioner cannot be a prevailing party, he is not the proper party to file a
petition under section 7430(f)(2), and we do not have jurisdiction to review
respondent’s denial of his application for administrative costs under section 7430.
To reflect the foregoing,
An order of dismissal granting
respondent’s motion to dismiss for lack of
jurisdiction will be entered.