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MOULTON v. U.S.

No. 04-2426.

429 F.3d 352 (2005)

Cecil J. MOULTON, Plaintiff/Counterclaim Defendant, Appellant, v. UNITED STATES of America, Defendant/Counterclaim Plaintiff, Appellee, v. Gregory Pratt, Counterclaim Defendant, Appellant.

United States Court of Appeals, First Circuit.

Decided November 21, 2005.

Attorney(s) appearing for the Case

Paul J. Dee, Jr., with whom Michael S. Marino and Truelove, Dee & Chase LLP were on brief, for appellants.

Teresa E. McLaughlin, Attorney, Tax Division, Department of Justice, with whom Robert J. Branman, Attorney, Tax Division, Department of Justice, Eileen J. O'Connor, Assistant Attorney General, and Michael J. Sullivan, United States Attorney, of counsel, were on brief, for appellee.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.

The issue in this case is whether the district court abused its discretion in denying an award under 26 U.S.C. § 7430 of attorneys' fees and costs to two taxpayers, Cecil J. Moulton and Gregory Pratt, one of whom initiated the underlying lawsuit in this case. The United States (the IRS) would be liable for such sums if it were not substantially justified in its earlier tax assessments, and in the underlying lawsuit in asserting counterclaims...

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