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FEINBERG v. UNITED STATES
March 1, 1985
LEONARD J. FEINBERG and ABBY FEINBERG, Plaintiffs
UNITED STATES OF AMERICA, Defendants
The opinion of the court was delivered by: WEINER
MEMORANDUM OPINION AND ORDER
Plaintiffs brought an action, pursuant to 28 U.S.C. § 1346(a), seeking a refund of tax penalties imposed pursuant to section 6672 of the Internal Revenue Code of 1954 (the Code). 26 U.S.C. § 6672. Plaintiffs paid the penalty assessment of $ 9,131.88 together with interest charges of $2,448.92 on April 30, 1984. On July 3, 1984, plaintiffs filed in this court an action for refund, having previously exhausted their administrative remedies. On October 15, 1984, subsequent to a pretrial conference held five days earlier, the United States deposed plaintiff Leonard Feinberg. As a result of this deposition, the United States agreed to a stipulation of an entry of judgment against it. This stipulation was filed on December 24, 1984.
Presently before the court is plaintiffs' application for counsel fees filed pursuant to § 7430 of the Code. After careful consideration of the parties' memoranda and the applicable law, we deny plaintiffs' application.
In civil proceedings regarding tax issues Congress has expressly provided that a party may be awarded attorneys' fees against the United States. Section 7430 provides in pertinent part:
(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), the prevailing party may be awarded a judgment for reasonable litigation costs incurred in such proceeding.
26 U.S.C. § 7430(a) (emphasis supplied).
Congress, in using the word "may", has given this court discretion as to an award of fees and costs to a prevailing party in a tax refund suit. Merely because a plaintiff has asked for attorneys' fees and costs in the prayer of his complaint does not guarantee such an award, even if judgment is entered in his favor. Randazzo v. United States Department of Treasury Internal Revenue Services, 581 F. Supp. 1235, 1237 (W.D. Pa. 1984).
However, before we may even exercise this discretion, we must determine whether the plaintiffs qualify as "prevailing parties" as this term is defined in § 7430(c)(2):
(A) In general. -- The term "prevailing party" means any party to any proceeding described in subsection (a) . . . which --
(i) establishes that the position of the United States in the civil proceeding ...
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