Julie Patriot,                )
 Petitioner,                  )  
     v.                       )        DOCKET #  3036-00
Commissioner Internal Revenue,)
Respondent.                   )
______________________________)

PETITIONER’S MOTION FOR ADMINISTRATIVE COSTS

  1. Petitioner Julie Patriot is hereby filing a motion for administrative costs pursuant to section 7430 and Tax Court Rule 231.
  2. Section 7430 of the Internal Revenue Code, 26 U.S.C. Sec. 7430, allows a litigant prevailing against the government to recover reasonable litigation costs and attorney's fees if the government's position in the civil proceeding was unreasonable.
  3. The circuit courts which have reviewed the reasonableness of the position of the United States in the civil proceeding are divided.
  4. The District of Columbia , Tenth and Eleventh Circuits have held that only the government's in-court litigating position must be examined. Baker v. Commissioner of Internal Revenue, 787 F.2d 637, 641-42 (D.C.Cir.1986); United States v. Balanced Financial Management, Inc., 769 F.2d 1440, 1450 (10th Cir.1985); Ewing and Thomas, P.A. v. Heye, 803 F.2d 613, 615-16 (11th Cir.1986). The District of Columbia, Tenth and Eleventh Circuits state that "section 7430 and its legislative history are both literally and sensibly read to cover only costs incurred once litigation commences," Baker, 787 F.2d at 641, and that the position of the United States "in the civil proceeding" encompasses only the government's in-court litigating position. Id. at 641-42.
  5. However, the First and Fifth Circuits construe Code section 7430 as allowing fees where the IRS has taken an unreasonable position in either in-court or administrative proceedings. Kaufman v. Egger, 758 F.2d 1, 3-4 (1st Cir.1985); Powell v. Commissioner of Internal Revenue, 791 F.2d 385, 388-92 (5th Cir.1986).
  6. In the present case, the in-court litigating position of the United States was unreasonable.
  7. Petitioner put in for her Collection Due Process Hearing (CDPH) timely and demanded a face-to-face hearing. The appeals officer contacted her accountant who was only handling some figures pertaining to the collection activity. The tax collector then claimed that the CPA had participated in a real live collection hearing by telephone.
  8. Petitioner filed affidavits and motions before the tax court stating very clearly that no in-person conference had been held, even though it had been clearly requested. The facts were clearly on Petitioner’s side and the tax court judge agreed.
  9. Petitioner also had a 90 day letter case, generally referred to as a tax liability case, dealing with a Substitute for Tax Return (SFR). The IRS failed to give her credit for her withholding which was greater than the amount allegedly owed. Petitioner ended up with a refund or a credit on another year's taxes.
  10. It is clear that the Internal Revenue Service position was unreasonable, and Petitioner is entitled to recoup the costs of this litigation.

CERTIFICATE OF SERVICE: I do hereby certify on this date that a copy this pleading was properly sent to the opposing counsel.

___________________________________ Date: October 9, 2008

Dr. Julie Patriot, Petitioner Pro se

Bridgeport, West Virginia 26330