In Re Seay

369 B.R. 423
CourtUnited States Bankruptcy Court, E.D. Arkansas
DecidedMay 16, 2007
DocketBankruptcy No. 4:05-bk-19608E, Adversary No. 4:05-ap-01300
StatusPublished
Cited by2 cases

This text of 369 B.R. 423 (In Re Seay) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Seay, 369 B.R. 423 (Ark. 2007).

Opinion

369 B.R. 423 (2007)

In re David L. SEAY, Debtor.
David L. Seay, Plaintiff,
v.
United States of America, Internal Revenue Service, Defendant.

Bankruptcy No. 4:05-bk-19608E, Adversary No. 4:05-ap-01300.

United States Bankruptcy Court, E.D. Arkansas, Little Rock Division.

May 16, 2007.

*424 *425 *426 Neil Deininger, Reba Wingfield & Amy Hall, for Plaintiff/Debtor.

Ann Reid, for the United States.

Richard Cox, Chapter 7 Trustee, U.S. Trustee.

ORDER GRANTING MOTION FOR FEES AND COSTS

AUDREY R. EVANS, Bankruptcy Judge.

On October 31, 2006, the Court entered a Memorandum Opinion and a Final Judgment finding that a 1982 income tax assessment is invalid on the basis of equitable estoppel, that Plaintiff is entitled to a return of all refunds retained by the Internal Revenue Service ("IRS") and applied to the 1982 tax liability with interest, and that Plaintiff is entitled to attorney fees to the extent allowed by law. The Court directed Plaintiff to subsequently file an application for attorneys' fees and costs under 26 U.S.C. § 7430(c)(4), and Plaintiff filed such application on January 3, 2007, styled as the Motion of Plaintiff for Reimbursement of Administrative and Litigating Costs Incurred by Plaintiff in this Dispute, Including Memorandum of Law in Support (hereinafter referred to as the "Motion for Fees and Costs"). The Defendant then filed the United States' Response in Opposition to Debtor's Application for Attorneys' Fees and Costs (the "Response") on February 7, 2007, and the Plaintiff filed a Reply to United States' Response in Opposition to Debtor's Application for Attorneys' Fees and Costs (the "Reply") on February 21, 2007. The parties have not requested a hearing in this matter, and the Court has determined that a hearing is not necessary to rule on Plaintiff's Motion for Attorneys' Fees and Costs.

APPLICABLE LAW

Section 7430 of the Internal Revenue Code authorizes (subject to certain conditions) the award of reasonable administrative and litigation costs incurred by the prevailing party "[i]n any administrative or court proceeding which is brought by or against the United States in connection with the determination, collection, or refund of any tax, interest, or penalty under this title." 26 U.S.C. § 7430(a). This Court has jurisdiction over both the administrative costs incurred in connection with the administrative proceedings before the IRS, and the litigation costs incurred in connection with the court proceeding before the Bankruptcy Court. 26 U.S.C. § 7430(a), (c). To qualify as a prevailing party, the taxpayer must have substantially prevailed with respect to either the amount in controversy, or the most significant issue or set of issues presented, and if an individual, the taxpayer must not have had a net worth in excess of $2 million as of the filing day of the suit. 26 U.S.C. § 7430(c)(4)(A). Several other requirements *427 must be met in order for a taxpayer to qualify for an award under § 7430. First, the taxpayer must have exhausted its available administrative remedies within the Internal Revenue Service. 26 U.S.C. § 7430(b)(1). Second, no award may be made for costs associated with "any portion of the administrative or court proceeding during which the prevailing party has unreasonably protracted such proceeding." 26 U.S.C. § 7430(b)(3). Finally, no litigation or administrative costs may be awarded under § 7430 for those fees and costs incurred before a "qualified offer" is made (this limitation is discussed more thoroughly herein) if the United States establishes that its position in the proceeding was "substantially justified." 26 U.S.C. § 7430(c)(4)(B).

ANALYSIS

The United States does not dispute that Plaintiff was the prevailing party in this action; nor does the United States dispute that Plaintiff exhausted his administrative remedies before bringing this action. Further, the United States does not contend that the Plaintiff has unreasonably protracted the proceedings. The United States, however, argues that Plaintiff does not qualify for an award of fees under § 7430 because: (1) Plaintiff has not actually incurred the costs and fees sought by its counsel; (2) with respect to pre-qualified offer expenses, the Government's position was substantially justified;[1] and (3) some of the Plaintiffs administrative and litigation costs are not reasonable. Further, the Government contends that even if an award of attorneys' fees and costs is properly awardable to Plaintiff under the statute, Plaintiff's counsel are not entitled to an hourly rate above that provided by statute. The Government also contends that Plaintiff is not entitled to an award of fees for paralegal's time. The Court will first address the United States' broader arguments as to whether the Plaintiff incurred the costs for which he seeks reimbursement, and if so, at what rate. The Court will then determine whether Plaintiff s administrative or litigation fees and costs may be awarded.

I. Were the Fees and Costs Incurred?

The Government contends that Plaintiff has not shown that he has actually incurred any fees or costs. To support this proposition, the Government submitted copies of the Debtor's fee agreements with his counsel, Deininger and Wingfield, P.A. The first fee agreement dated November 1, 2005, provides, in part:

Firm shall keep time records of all time expended in this matter and said time shall be billed at Firm's normal billing rates. However, Client shall not be liable for time expended by Firm over and above the amount of assets available in Client's Chapter 7 estate to pay administrative claims and any amount awarded by the Bankruptcy Court as attorneys' fees for the litigation anticipated hereunder. However, it is anticipated that, as part of the litigation herein, Firm will seek recovery of certain refunds previously offset by the IRS against Client. Any such recovered refunds shall be paid one-half (½) to Firm as additional attorneys' fees and one-half to Client. Further, any attorneys' fees awarded administratively or by any court in the litigation anticipated hereunder or otherwise pertaining to *428 any attorneys' fees incurred by Client and his spouse prior to the anticipated Adversary Proceeding with regard to his 1982 federal income tax liability, shall be paid one-half (½) to Firm as additional fee [sic] herein and the remaining one-half (½) shall be refunded to Client in repayment of prior attorneys' fees paid by Client.
It is anticipated that Firm will make a "qualified offer" of settlement to the IRS (as defined by Internal Revenue Code § 7430(g)) in connection with the litigation contemplated herein.

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Bluebook (online)
369 B.R. 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-seay-areb-2007.