dissenting:
Plaintiff respondent, Rosmarie Bogner, relied upon I.C. § 63-3022(1 )(2) to claim a deduction for foreign taxes paid. I.C. § 63-3022(1 )(2) allows a taxpayer to deduct from gross income “(a.) itemized deductions as defined in sections 163, 164, ... 165, 166, 170, 171, 211, 212, 213, 216, and 218, Internal Revenue Code ____” Although Bogner did not take a federal tax deduction pursuant to I.R.C. § 164 for foreign taxes paid, the majority agrees with Bogner that pursuant to I.C. § 63-3022(1 )(2) a deduction for foreign taxes paid may be taken for state tax purposes. I cannot agree.
In determining whether Bogner’s deduction may be taken pursuant to I.C. § 63-3022(Z)(2), this Court must be mindful of I.C. § 63-3002. I.C. § 63-3002 states:
“It is the intent of the legislature by the adoption of [the Idaho Income Tax Act], insofar as possible to make the provisions of the Idaho act identical to the provisions of the Federal Internal Revenue Code relating to the measurement of taxable income ...; to achieve this result by the application of the various provisions of the Federal Internal Revenue Code relating to the definition of income, exceptions therefrom, deductions (personal and otherwise) ____”
(Emphasis added.)
Thus, by legislative mandate, I.C. § 63-3022(Z )(2) must be interpreted so as to be consistent with the Internal Revenue Code. To achieve this result the entire Federal Internal Revenue Code must be examined.
Under the Internal Revenue Code, Bogner is not entitled to a § 164 deduction. I.R.C. § 164 allows a taxpayer to take a deduction for foreign taxes paid. However, I.R.C. § 164(f) specifically cross references the taxpayer to I.R.C. § 275. I.R.C. § 275 states:
“(a) No deduction shall be allowed for the following taxes:
“(4) income, war profits, and excess profits taxes imposed by the authority of any foreign country or possession of the United States, if the taxpayer chooses to take to any extent the benefits of section 901 (relating to the foreign tax credit).” (Emphasis added.)
Under I.R.C. § 901 a taxpayer may elect to claim a tax credit for foreign taxes paid. The federal statutory scheme thus forces the taxpayer to choose between a deduction or a credit for foreign taxes paid. If the taxpayer chooses to take a tax credit under I.R.C. § 901, as Bogner did here, the taxpayer simply has no deduction available *860under I.R.C. § 164. Since I.C. § 63-3022(i )(2) adopts I.R.C. § 164 by reference, it is error for this Court to allow Bogner a deduction for state tax purposes when no deduction is available at the federal level.
I also dissent from the majority’s position on the district court’s award of attorney fees. The district court’s conclusion that the State Tax Commission “frivolously, unreasonably and without foundation ... misread and misinterpreted I.C. § 63-3002 and 63-3022 ...” is not justified in this case. Attorney fees pursuant to I.C. § 12-121 are not to be awarded where a genuine issue of law is presented. Minich v. Gem State Developers, Inc., 99 Idaho 911, 918, 591 P.2d 1078, 1085 (1979). Simple disagreement with a party’s position is not ample justification for the award of attorney fees under I.C. § 12-121. Even if the district court did not accept the tax commission’s reading of the statutory language, the reading is defensible and reasonable. Further, as the majority acknowledges, the record does not indicate that the tax commission was dilatory or unprepared in pursuing this cause. Thus, I would reverse the district court’s award of attorney fees.
Lastly, I find error in the district court’s allowance of attorney fees under I.C. § 12-121 for costs incurred during the administrative proceedings. Although the 1984 enactment of I.C. § 12-117 opens the door for assessing attorney fees incurred during administrative proceedings, it does not apply retroactively to this case. See I.C. § 73-101. (“No part of these compiled laws is retroactive, unless expressly so declared.”) The new statute was clearly enacted to provide for situations not previously addressed in I.C. § 12-121, which by its terms applies only to “civil actions,” and not to administrative proceedings. Accordingly, I cannot agree that I.C. § 12-117 supports the majority’s interpretation of I.C. § 12-121. On the contrary, the enactment of I.C. § 12-117 indicates that attorney fees incurred during administrative proceedings may not be awarded under I.C. § 12-121.