POWELL v. C.I.R.

No. 85-4237.

791 F.2d 385 (1986)

David J. POWELL and Estate of Jeane D. Powell, Deceased, David J. Powell, Executor, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

United States Court of Appeals, Fifth Circuit.

Rehearing Denied August 7, 1986.


Attorney(s) appearing for the Case

William S. Lee, Claude R. Wilson, Jr., Dallas, Tex., for petitioners-appellants.

Bruce R. Ellisen, Atty., Glenn L. Archer, Asst. Atty. Gen., Tax Div., U.S. Dept. of Justice, Michael L. Paup, Chief, Appellate Section, Gilbert S. Rothenberg, Atty., Robert P. Ruwe, Director, Tax Litigation Div., Office of Chief Counsel by Dan Henry Lee, Chief, Washington, D.C., David A. Hampel, Counsel for I.R.S., Dallas, Tex., for respondent-appellee.

Before THORNBERRY, RUBIN, and JOLLY, Circuit Judges.


ALVIN B. RUBIN, Circuit Judge:

The issue is the standard to apply in determining the right to recover attorney's fees by a taxpayer who prevails against the Internal Revenue Service in tax litigation. The IRS contends that the test is whether the government's position taken after litigation has begun is reasonable and the Tax Court adopted this interpretation of the controlling statute. Because the Tax Court should also take into account the government's administrative...

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