Estate of Perry v. C.I.R.
| Decision Date | 13 May 1991 |
| Docket Number | No. 90-4509,90-4509 |
| Citation | 931 F.2d 1044 |
| Parties | -6290, 91-1 USTC P 50,283, 91-1 USTC P 60,073 ESTATE OF Frank Martin PERRY, Sr., Deceased, Michael C. Perry, Whit S. Perry, and Robert S. Perry, Co-Executors, Petitioners-Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gary R. Allen, Chief, John A. Dudeck, Jr., Robert S. Pomerance, Appellate Section, Dept. of Justice, Tax Div., Abraham N.M. Shashy, Jr., Chief Counsel, I.R.S., Shirley D. Peterson, Asst. Atty. Gen., Washington, D.C., for respondent-appellant.
Hugh Cameron Montgomery, Jr., Charles L. Brocato, J. Lee Woodruff, Jr., Butler, Snow, O'Mara, Stevens & Cannada, Jackson, Miss., for petitioners-appellees.
Appeal from the United States Tax Court.
Before JOHNSON, SMITH and WIENER, Circuit Judges.
IT IS ORDERED that Petitioners-Appellees' motion for an award of attorneys' fees is GRANTED pursuant to Section 7430 of the Internal Revenue Code of 1986, as amended (the Code), in the amount of $9,206.25.
The contents of the motion for attorneys' fees filed on behalf of Petitioners-Appellees (hereafter Movants) reflect Movants' compliance with all prerequisites for obtaining attorneys' fees from Respondent-Appellant (hereafter Commissioner) pursuant to Section 7430 of the Code. The motion is supported by an affidavit, Exhibit C, executed by counsel for Movants, which exhibit is in turn supported by an itemized listing, identified as Appendix A, reflecting the date, attorney, time and description of each professional service rendered, and sworn to by counsel as reflecting contemporaneous time records of the five attorneys who participated in the representation of Movants on appeal. The rate proposed for calculation of the fees recoverable for professional services of the five attorneys in question is the statutory rate of $75.00 per hour, and the total hours reflected by contemporaneous time records is 122.75, producing the total fees requested of $9,206.25.
In opposing the motion for an award of attorneys' fees on appeal, the Commissioner has not questioned the reasonableness of the hourly rate, the number of hours devoted to the case, the number or qualifications of the attorneys representing Movants on appeal, the quality or competence of the evidence supporting the motion, the fact that Movants prevailed in the underlying litigation, the net worth of Movants, or any other possible point of contention except whether the Commissioner was "substantially justified" in taking the instant appeal.
In relying solely on the "substantially justified" issue to avoid attorneys' fees, the Commissioner advances several arguments. He posits first that the mere fact...
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Powers v. Comm'r of Internal Revenue
...v. Commissioner, 967 F.2d 116, 120 (5th Cir.1992), affg. in part and revg. in part T.C. Memo. 1991–189; Estate of Perry v. Commissioner, 931 F.2d 1044, 1046 (5th Cir.1991). The taxpayer need not show bad faith to establish that the Commissioner's position was not substantially justified for......
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...of a motion for litigation costs under section 7430. Estate of Perry v. Commissioner [91-1 USTC ¶ 50,283; 91-1 USTC ¶ 60,073], 931 F.2d 1044, 1046 (5th Cir. 1991); Powers v. Commissioner, The legislative history of section 7430 sets forth the following guidelines for determining whether the......
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Williford v. Commissioner
...affg. in part and revg. in part [Dec. 47,316(M)] T.C. Memo. 1991-189; Estate of Perry v. Commissioner [91-1 USTC ¶ 50,283], 931 F.2d 1044, 1046 (5th Cir. 1991); Powers v. Commissioner [Dec. 49,059], 100 T.C. 457, 471 (1993). The taxpayer need not show bad faith to establish that the Commiss......
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