-
Jon R. Pollei and Carol J. Pollei, Petitioners v. Commissioner of Internal Revenue, Respondent; Harry W. Patrick and Renee L. Patrick, Petitioners v. Commissioner of Internal Revenue, RespondentPollei v. CommissionerDocket Nos. 28737-84, 28738-84
United States Tax Court April 18, 1990 April 18, 1990, Filed*39 Ps petitioned this Court to contest R's determination that Ps' travel between their homes and office was commuting. Ps were unsuccessful in this Court and appealed to the Court of Appeals, which reversed and entered judgment for Ps. Because Ps were not the "prevailing [parties]" in this Court, they were precluded from seeking fees and costs under
sec. 7430, I.R.C. Following their successful appeal, Ps filed a motion with the Court of Appeals requesting that they be awarded their costs and attorneys' fees incurred during the appeal and that the appellate court issue an order directing "the United States Tax Court to award [Ps] their costs and attorneys fees incurred in the trial of this matter * * * pursuant to[sec.] 7430 ." Ps filed a similar motion with this Court requesting that we award them their trial court costs. The Court of Appeals denied the application for attorneys' fees and only awarded a portion of Ps' appellate court costs. The Court of Appeals provided no other commentary with respect to Ps' motion, did not expressly or implicitly issue a mandate regarding trial court fees and costs, and did not otherwise remand these cases back to this Court to consider this or*40 any other issue, although Ps had requested them to do so.Held , this Court is without authority to consider Ps' motion for costs and attorneys' fees undersec. 7430 because the "law of the case" doctrine precludes our reexamination of matters considered and acted upon (either expressly or by implication) by a Court of Appeals.Steven D. Woodland Ronald J. Gardner Gerber,Judge .GERBER*596 OPINION
Petitioners have moved for litigation costs under
section 7430 .section 7430 . A brief chronological*41 review of the underlying litigation is helpful to frame and focus upon this issue.Respondent determined deficiencies in the 1981 Federal income tax of petitioners Jon R. Pollei and Harry W. *597 Patrick. *42 travel between their homes and headquarters was a nondeductible personal commuting expense. Secs. 162, 262;
sec. 1.262-1(b)(5), Income Tax Regs. This Court was petitioned to redetermine those tax deficiencies. Petitioners argued that their situation varied from the usual commuting case because, under police regulations, they were required to be on duty any time they entered their private, police-equipped cars and to provide police services during the time they were traveling between their homes and police headquarters. After a trial, we held for respondent, in essence, as follows:
Commuting is essential to most employees' employment, but is not a deductible expense. Commuting is one of the expenses that is so inherently personal that it cannot qualify for deductibility, irrespective of its role in the taxpayer's trade or business.Moss v. Commissioner , 80 T.C. 1073">80 T.C. 1073758 F.2d 211">758 F.2d 211 (7th Cir. 1985);Fred W. Amend Co. v. Commissioner , 55 T.C. 320">55 T.C. 320454 F.2d 399">454 F.2d 399 (7th Cir. 1971);Bakewell v. Commissioner , 23 T.C. 803">23 T.C. 803Petitioners did not argue or prove that they incurred additional expense in driving to and from headquarters and their residences due to the requirement to call in or begin their "tour of duty." They simply argue that the travel time had been designated by the department as occurring during their "tour of duty."
[
Pollei v. Commissioner , 87 T.C. 869">87 T.C. 869Our opinion was filed and served upon the parties on October 28, 1986. Petitioners appealed our decision to the U.S. Court of Appeals for the Tenth Circuit. The Court of Appeals, relying upon
Christey v. United States , 809">841 F.2d 809Sibla v. Commissioner , 611 F.2d 1260">611 F.2d 126068 T.C. 422">68 T.C. 422 (1977) and67 T.C. 870">67 T.C. 870 (1977),*44 reversed, holding that "the employment conditions imposed upon petitioners caused them to incur expenses in maintaining and operating their personally-owned *598 vehicles while traveling to and from [police] headquarters and that such expenses should be deductible under section 162(a)."Pollei v. Commissioner , 877 F.2d 838">877 F.2d 838Soon after judgment was entered, petitioners filed a motion with the Court of Appeals requesting that they be awarded their costs under
28 U.S.C. sections 1920 and2412 (1982) and attorneys' fees incurred in the appeal undersection 7430 , and that the court issue an order directing "the United States Tax Court to award [petitioners] their costs and attorneys fees incurred in the trial of this matter in the United States Tax Court pursuant to[section] 7430 ." *46 On August 4, 1989, petitioners also filed a similar *599 motion with this Court requesting that we award them their trial court costs. *45 fees" and "[awarded] [petitioners'] costs for docket fees and brief reproduction [incurred during the appeal] in the amount of $ 335.63." The Court of Appeals issued no other commentary with respect to petitioners' motion.Our jurisdiction or authority to consider petitioners' motion is a fundamental and threshold issue which neither party has addressed. Our sua sponte inquiry was prompted because the Court of Appeals was asked to decide and/or to remand on the issue of litigation costs and fees; it issued an order with respect to that request; and it did not issue a mandate or otherwise remand these cases back to this Court to consider any issue or take any further action, other than the implicit requirement that we enter a decision for petitioners. *47 Pursuant to section 7482(a), the U.S. Courts of Appeals *600 review, the Courts of Appeals "shall have power to affirm or, if the decision of the Tax Court is not in accordance with law, to modify or to reverse the decision of the Tax Court, with or without remanding the case for a rehearing, as justice may require." Sec. 7482(c); see also
28 U.S.C. sec. 2106 (1982) .The general rule is that perfection of an appeal operates to transfer jurisdiction of the case to the Court of Appeals -- that is, the jurisdiction of the trial court ceases and that of the Court of Appeals begins. Once an appeal is commenced, the trial court is generally without authority to act upon matters relating*48 to the subject matter of the appeal until the mandate from the appellate court is returned.
Marrese v. American Academy of Orthopaedic Surgeons , 470 U.S. 373">470 U.S. 373Griggs v. Provident Consumer Discount Co ., 459 U.S. 56">459 U.S. 56Garcia v. Burlington Northern Railroad , 818 F.2d 713 (10th Cir. 1987)Hunter Douglas Corp. v. Lando Products , 235 F.2d 631">235 F.2d 631Matter of Thorp , 655 F.2d 997">655 F.2d 997Matter of Combined Metals Reduction Co ., 557 F.2d 179">557 F.2d 179Griggs v. Provident Consumer Discount Co., supra at 58-59There are, however, limited exceptions to this general rule. Even though a judgment on the merits has been properly appealed and is pending in the Court of Appeals, the lower court may retain jurisdiction over certain matters, *49 without appellate court approval or sanction, such as those that are collateral to the appeal, in aid of the appeal, to correct clerical mistakes, in aid of execution of a judgment that has not been superseded, and to maintain the status quo between the parties pending the appeal. See, e.g.,
N.L.R.B. v. Cincinnati Bronze, Inc ., 829 F.2d 585 (6th Cir. 1987)Krull v. Celotex Corp ., 827 F.2d 80">827 F.2d 80Garcia v. Burlington Northern Railroad, supra ; Piamco, Inc. v. Shell Oil Co ., 799 F.2d 262">799 F.2d 262Island Creek *601 , 764 F.2d 437">764 F.2d 437Venen v. Sweet , 758 F.2d 117 (3d Cir. 1985)National Service Industries, Inc. v. Vafla Corp ., 694 F.2d 246 (11th Cir. 1982)Davis v. United States , 667 F.2d 822">667 F.2d 822Matter of Thorp, supra ; Hoffman for and on behalf of N.L.R.B. v. Beer Drivers & Salesmen's Local Union No. 888 , 536 F.2d 1268 (9th Cir. 1976)Home Group, Inc. v. Commissioner , 92 T.C. 940">92 T.C. 940Krull v. Celotex Corp., supra ; Thomas v. Capital Security Services, Inc ., 812 F.2d 984">812 F.2d 984Venen v. Sweet, supra ; League of Women Voters of Cal. v. F.C.C ., 751 F.2d 986">751 F.2d 986Masalosalo by Masalosalo v. Stonewall Ins. Co ., 718 F.2d 955">718 F.2d 955Rothenberg v. Security Management Co ., 677 F.2d 64">677 F.2d 64Janicki v. Pizza , 501 F. Supp. 312">501 F. Supp. 312A lower court's authority to address any issues after an appeal is completed, however, is generally limited by any action taken by the appellate court with respect to those issues during the appeal. A holding on an issue by an appellate court must be followed in all subsequent proceedings in the same case in the trial court or on a later appeal in the appellate*51 court. This rule, which has been referred to as the "law of the case" doctrine, generally operates to preclude a reexamination of issues decided upon appeal, either by the lower court on remand or by the appellate court itself upon a subsequent appeal. See, e.g.,
Quern v. Jordan , 440 U.S. 332">440 U.S. 332In re Sanford Fork & Tool Co ., 160 U.S. 247">160 U.S. 247Rutherford v. United States , 806 F.2d 1455 (10th Cir. 1986)Estate of Whitlock v. Commissioner , 547 F.2d 506">547 F.2d 506United States v. White , 846 F.2d 678">846 F.2d 678Rutherford v. United States, supra ; Matter of Beverly Hills Bancorp , 752 F.2d 1334">752 F.2d 1334Doe v. New York City Dept. of Social Services , 782">709 F.2d 782Gray Panthers v. Schweiker , 716 F.2d 23 (D.C. Cir. 1983)Estate of Whitlock v. Commissioner, supra .In this regard, the lower court is bound not only by the appellate court's determinations but by the appellate court's mandate.
Rutherford v. United States, supra ; Doe v. New York City Dept. of Social Services, supra ; Maggard v. O'Connell , 703 F.2d 1284 (D.C. Cir. 1983)In re Sanford Fork & Tool Co., supra ; Rutherford v. United States, supra .*53 Early in the history of this Court, the Board of Tax Appeals had occasion to decide an issue somewhat similar to the one confronting us now. See
Peavy-Byrnes Lumber Co. v. Commissioner , 31 B.T.A. 985">31 B.T.A. 98586 F.2d 234">86 F.2d 234 (5th Cir. 1936). In that case, the taxpayer appealed the Board's holding to the U.S. Court of Appeals for the Fifth Circuit. The Court of Appeals reversed the Board's holding and remanded the case "'with directions to redetermine petitioner's tax liability in accordance with its finding'" and upon a specific basis set out both in the Court's opinion and in the mandate.31 B.T.A. at 986 , quoting69 F.2d 712">69 F.2d 712 , 714 (5th Cir. 1934). The case had been remanded for the sole purpose of the Board's making a mathematical calculation according to a formula stated in *603 the mandate, and for entering judgment in accord therewith. On remand, the taxpayer moved the Board for leave to amend its pleading to present a new issue not previously raised and considered by the Board or the Court of Appeals. The new issue would have required the introduction*54 of additional evidence. If the new issue was decided in the taxpayer's favor, it would have altered the amount of tax liability that would have been calculated under the appellate court's formula and mandate. The Board ruled that it did not have authority to adjudicate the new issue, holding as follows:The rule seems to be well settled by the weight of authority that an inferior tribunal, upon remand of a cause by an appellate court, can not take any action not reasonably within the express or implied directions of the reviewing court. Upon entry of our decision on November 10, 1932, the proceeding was fully and finally disposed of so far as concerned this Board, and upon appeal to the Circuit Court our general jurisdiction over the case then and there was ended. When our decision was reversed and the case remanded our jurisdiction was restored only to the extent necessary to carry out the court's directions. The case of
In re Sanford Fork & Tool Co ., 160 U.S. 247">160 U.S. 247When a case has been once decided by this court on appeal, and remanded to the Circuit Court, whatever was before this court, and disposed of*55 by its decree, is considered as finally settled. The Circuit Court is bound by the decree as the law of the case; and must carry it into execution, according to the mandate. The court can not vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon any matter decided on appeal; or intermeddle with it, further than to settle so much as has been remanded.
[
31 B.T.A. at 987 . See alsoAmerada Hess Corp. v. Commissioner , 65 T.C. 1161">65 T.C. 1161Romm v. Commissioner , 255 F.2d 698">255 F.2d 698The Board in
Peavy-Byrnes Lumber also relied uponKansas City Southern Railway v. Guardian Trust Co ., 281 U.S. 1">281 U.S. 1281 U.S. at 7 , quotingCentral Improvement Co. v. Cambria Steel Co ., 210 F. 696">210 F. 696The decree here affirmed required the "taxation of costs * * * under the principles, rules and practice in equity." It undoubtedly covered ascertainment of amounts taxable between party and party. There was no specific reference to any additional allowance. The language used disclosed no intention to require more than the usual taxation. * * *
For the proper construction of the decree under consideration, regard is to be had to the issues before the court on appeal, the findings applied for and the directions given. * * *
* * * The failure of the court [of appeals] to make the requested special finding, to adopt the alternative suggestion or to take any action in reference to the parts of the application relating*58 to the [prevailing party's] damages and expenses in the injunction suits goes to show a purpose to deny any recovery of expenses in addition to the costs which under established practice are taxable as between party and party. And the opinion makes it clear that the decree directed to be entered below was intended to be an end of the whole matter. It is plain that the *605 stockholders' application was denied and that the decree did not authorize or permit the taxation of costs as between solicitor and client.
The mandate required the execution of the decree. The District Court could not vary it or give any further relief. * * * That court was right in holding that, by the decree of the Circuit Court of Appeals and the mandate of this court, the costs recoverable * * * were limited to those taxable between party and party.
[Citations omitted.
281 U.S. at 9-11 ; see alsoBriggs v. Pennsylvania Railroad , 334 U.S. 304">334 U.S. 304In the cases before this Court, petitioners first presented the costs issue to the Court of Appeals after prevailing on appeal. It was at that point that the awarding of costs under
section 7430 *59 became ripe for decision. Pursuant tosection 7430(c)(2)(A) and Rule 231,section 7430 . Seesupra note 4.In petitioners' motion, the Court of Appeals was requested to award petitioners their costs under
28 U.S.C. sections 1920 and2412 (1982) and attorneys' fees for prosecuting the appeal undersection 7430 , and*60 to "direct the United States Tax Court to award [petitioners] their costs and attorneys fees incurred in the trial of this matter in the United States Tax Court pursuant to[section] 7430 ." In response, the Court of Appeals awarded costs in the amount of $ 335.63 and denied the application for attorneys' fees. Under these circumstances, we find that (1) we do not have jurisdiction or authority to grant petitioners' motion for costs because the Court of Appeals did not issue a mandate or otherwise remand the case to us to consider that issue, although requested to do so; and (2) under the "law of the case" doctrine, the Court of Appeals has implicitly and in effect denied what petitioners are requesting here, thereby precluding us from addressing these matters further.*606 When we entered our decision after the trial of these cases, the proceeding was fully and finally disposed of so far as this Court's involvement, and upon appeal to the Court of Appeals for the Tenth Circuit, our general jurisdiction over the cases then and there ended.
Marrese v. American Academy of Orthopaedic Surgeons , 470 U.S. 373">470 U.S. 373Griggs v. Provident Consumer Discount Co ., 459 U.S. 56 (1982)Peavy-Byrnes Lumber Co. v. Commissioner , 31 B.T.A. at 987section 7430 at the end of the Tax Court proceeding. Seesupra note 4. Thus, our jurisdiction over the Tax Court proceeding ended. When our decision was later reversed, the Court of Appeals entered judgment and made no attempt to restore our jurisdiction for any purpose, including to consider the awarding of costs to petitioners. Although petitioners were first permitted to request costs during appeal, the Court of Appeals, without explanation, did not award them costs undersection 7430 , did not issue a mandate regarding trial court costs, and did not remand these matters to us for our consideration of this or any other issue, even after petitioners so requested. The Court of Appeals concluded its consideration of these cases and made its judgment final, with the possible exception*62 of a rehearing en banc or appeal to the Supreme Court.Where the merits of a case have been decided upon an appeal, the trial court must proceed in accordance with the direction contained in the mandate. The trial court is without jurisdiction to act on any issue unless the mandate, at least implicitly, allows for consideration of the issue.
In re Sanford Fork & Tool Co ., 160 U.S. at 255Mackall v. Richards , 116 U.S. 45">116 U.S. 45Rutherford v. United States, supra ; Gibbons v. Brandt , 181 F.2d 650">181 F.2d 650In re Chicago, R. I. & P. Railway , 162 F.2d 257">162 F.2d 257Mays v. Burgess , 152 F.2d 123">152 F.2d 123Kansas City Southern Railway v. Guardian Trust Co ., 281 U.S. at 11section 7430 . *64 The "law of the case" doctrine precludes our reexamination of issues that have been decided expressly or by necessary implication by a superior court on appeal.In re Sanford Fork & Tool Co ., 160 U.S. 247 (1895)expressly denied by the Court of Appeals, we are convinced, by "necessary implication," that this is what the Court of Appeals intended.Kansas City Southern Railway v. Guardian Trust Co ., 281 U.S. 1">281 U.S. 1, 10 (1930)section 7430 .Kansas City Southern Railway v. Guardian Trust Co., supra .One might argue that the Court of Appeals' failure to grant petitioners' motion or request that the costs and fees matter be remanded to this Court for further proceedings is not dispositive of that issue. But we find the effective denial here to be dispositive because it was within the authority of the Court of Appeals to remand this matter for our consideration when requested to do so. We distinguish the case of
Liberty Mutual Insurance Co. v. E.E.O.C ., 691 F.2d 438 (9th Cir. 1982)691 F.2d at 441 . UnlikeLiberty , where the appellate court's remand apparently did not foreclose the lower court from considering the costs issue, in our case the appellate court was specifically asked to remand the case to allow this Court to address the costs issue, and it did not. One can hardly say that this silence has left the matter of costs open for consideration by the trial court on remand.If petitioners had not requested the Court of Appeals to remand or for relief on the costs and fees issue at the trial level, it would then appear that the matter would be within our authority for consideration and decision. It could then be construed that the collateral issue concerning costs and fees was "left open" by the mandate even though there was no remand for that purpose. In a per curiam opinion, the Supreme Court indicated that its silence on fees (under section 4 of the Clayton*67 Act) did not dispose of the matter and left the lower courts free to consider that collateral matter after its final judgment on the merits of the case.
Perkins v. Standard Oil Co ., 399 U.S. 222">399 U.S. 222Perkins was apparently due to the failure of the parties to advance the issue at the *609 Supreme Court level. We are accordingly without jurisdiction or authority to reexamine the costs and fees issue. *68Appropriate orders and decisions will be issued .Footnotes
1. All section references are to the Internal Revenue Code as amended and in effect for the period under consideration. All Rule references are to this Court's Rules of Practice and Procedure.↩
2. As we will discuss more fully,
infra , at the conclusion of these cases at the trial level, petitioners were not the "prevailing [parties]" and not entitled to costs or fees. Seesec. 7430(c)(2)(A)↩ and Rules 230-233.3. Although not identified as petitioners in the text of this opinion, Carol J. Pollei and Renee L. Patrick are also parties in these actions.↩
4.
Sec. 7430 provides, in pertinent part, as follows:SEC. 7430 (a) . In General. -- In the case of any civil proceeding which is --(1) brought by or against the United States in connection with the determination, collection, or refund of any tax, interest, or penalty under this title, and
(2) brought in a court of the United States (including the Tax Court and the United States Claims Court),
* * * *
(c) Definitions. -- For purposes of this section --
(1) Reasonable litigation costs. --
(A) In general. -- The term "reasonable litigation costs" includes --
(i) reasonable court costs,
(ii) the reasonable expenses of expert witnesses in connection with the civil proceeding,
(iii) the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party's case, and
(iv) reasonable fees paid or incurred for the services of attorneys in connection with the civil proceeding.
* * * *
(2) Prevailing party. --
(A) In general. -- The term "prevailing party" means any party to any proceeding described in subsection (a) (other than the United States or any creditor of the taxpayer involved) which --
(i) establishes that the position of the United States in the civil proceeding was unreasonable, and
(ii)(I) has substantially prevailed with respect to the amount in controversy, or
(II) has substantially prevailed with respect to the most significant issue or set of issues presented.
The Tax Reform Act of 1986, Pub. L. 99-514, sec. 1551(d), 100 Stat. 2085, 2752, amended
sec. 7430(c)(2)(A)(i) by changing the "unreasonable" standard to a "not substantially justified" standard for amounts paid after Sept. 30, 1986, in civil actions or proceedings commenced after Dec. 31, 1985. However, this and other courts have held that the "substantially justified" standard is not a departure from the "reasonableness" standard.Sokol v. Commissioner , 92 T.C. 760">92 T.C. 760Sher v. Commissioner , 89 T.C. 79">89 T.C. 79861 F.2d 131">861 F.2d 131 (5th Cir. 1988). Furthermore, the Technical and Miscellaneous Revenue Act of 1988, Pub. L. 100-647, sec. 6239, 102 Stat. 3342, 3743, redesignated the provisions ofsec. 7430(c)(2)(A) , as applicable herein, assec. 7430(c)(4)(A)↩ for proceedings commenced after Nov. 10, 1988.5. The parties in this case were allowed to file briefs addressing this matter and the last brief was filed Feb. 12, 1990.↩
6. It has been this Court's experience that Courts of Appeals frequently do not issue an express mandate in an opinion or in a separate order. In other words, where a holding has been reversed, the Circuit Court so states in its opinion or judgment which is served upon this Court and we, in turn, effectuate the mandate by issuance of our decision in accord with sec. 7481(a)(3). That is what occurred in this case. The Court of Appeals, in its holding, simply recited that our holding was reversed. The issue that we are confronted with, however, arises because the Court of Appeals did not grant petitioners' motion to direct the trial court to consider the issue of litigation costs and fees at the trial level. We must consider whether that precludes or preempts our consideration of this fee issue.↩
7. Other than the U.S. Court of Appeals for the Federal Circuit.↩
8. The law of the case doctrine, however, has its exceptions. A decision of an appellate court may not be binding upon the lower court under certain limited and exceptional circumstances. Included are situations where the evidence produced in a subsequent trial held on remand is substantially different from that of the trial that resulted in the appeal, controlling authority has since made a contrary decision of the law applicable to the issues decided on appeal, and the decision of the appellate court was clearly erroneous and would work a manifest injustice.
Bloom v. International Brotherhood of Teamsters Local 468 , 752 F.2d 1312 (9th Cir. 1984)United States v. Williams , 728 F.2d 1402">728 F.2d 1402Otten v. Stonewall Insurance Co ., 538 F.2d 210 (8th Cir. 1976)Standard Oil Co. of Cal. v. United States , 429 U.S. 17">429 U.S. 17Fed. R. Civ. P. 60(b) without appellate court leave for purposes of considering later events. But seeUnited States v. Fernandez , 506 F.2d 1200">506 F.2d 1200↩9. Rule 231 provides, in pertinent part, as follows:
(a) Time and Manner of Claim: * * *
(2)
Unagreed Cases : Where a party has substantially prevailed and wishes to claim reasonable litigation costs, and there is no agreement as to that party's entitlement to such costs, a claim shall be made by motion filed --(i) Within 30 days after the service of a written opinion determining the issues in the case;↩
10. Our reliance on the fact that the Court of Appeals did not issue a mandate or remand the case to this Court is not a matter of semantics. This is not a situation where the appellate court, although failing to remand, has otherwise provided the lower court with some direction or instruction. Compare
Estate of Whitlock v. Commissioner , 547 F.2d 506">547 F.2d 50611. Petitioners could have moved the Court of Appeals to reconsider, amend, or clarify its order, but they did not do so. See
Briggs v. Pennsylvania Railroad , 334 U.S. 304">334 U.S. 304Estate of Whitlock v. Commissioner, supra↩ .12. We note for the possible convenience of and assistance to the Court of Appeals that upon remand we would have decided the
sec. 7430 fees and costs issue adversely to petitioners. We address here what we believe to be a rare circumstance. In order for petitioners to be successful, they must show that the Government's position was "unreasonable" in a setting where the Government's position was sustained by the lower court and then reversed by an appellate court. Although that possibility may on occasion occur, its likelihood is small.Sec. 7430(a) generally provides that a "prevailing party" in a court proceeding may be awarded "reasonable litigation costs." For proceedings, such as the present one, that commenced before Jan. 1, 1986,sec. 7430(c)(2)(A)(i) defines "prevailing party," in pertinent part, as any party to a court proceeding which "establishes that the position of the United States in the civil proceeding was unreasonable."Respondent's position in this litigation was that the expenses petitioners incurred in traveling between their respective homes and police headquarters were personal commuting expenses and, therefore, not deductible. Respondent relied upon secs. 162, 212, and 262, the regulations promulgated thereunder, and established case law such as
Fausner v. Commissioner , 413 U.S. 838">413 U.S. 838Commissioner v. Flowers , 326 U.S. 465 (1946)Fausner v. Commissioner, supra .The cases considered by the Court of Appeals do not directly address the same issue or establish that respondent's position was unreasonable.
Christey v. United States , 841 F.2d 809">841 F.2d 809Sibla v. Commissioner , 611 F.2d 1260">611 F.2d 126068 T.C. 422">68 T.C. 422 (1977) and67 T.C. 870">67 T.C. 870 (1977), was decided by a divided panel of the Court of Appeals for the Ninth Circuit. In dissenting, Judge Kennedy was of the opinion that the expenses at issue (fireman's share of expenses of a mandatory organized mess at the firehouse) were not business expenses. Similarly, in the Tax Court only a plurality of 7 out of 15 judges found that the expenses were business expenses. Respondent's challenge of petitioners should not be regarded as the advocacy of an unreasonable or irresponsible legal position. SeeCherry v. United States , 4 Cl. Ct. 20">4 Cl. Ct. 20We also note that we have not reached the question of the reasonableness of petitioners' claim for $ 12,251.10 in legal costs and fees in connection with the representation of cases at the trial level involving combined income tax deficiencies of $ 979.30. The reasonableness of the fees and costs would not be reached unless it was first decided that respondent's position was unreasonable.↩
Document Info
Docket Number： Docket Nos. 28737-84, 28738-84
Judges： Gerber
Filed Date： 4/18/1990
Precedential Status： Precedential
Modified Date： 10/19/2024