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time” before filing suit [Treasury IRS or failed to supply necessary records of the tax issues have been decided. The
Regulations sections 301.7430-1(d)(1), [In re Southeast Stores, Inc., 156 B.R. 160, request for fees is not included in the
301.7433-1(d)]. Reasonable time is defined 167 (Bkrtcy. E.D. Va. 1993); Polyco, Inc. petition; it is handled later, either by stip-
as five days before filing a petition to quash v. Comm’r, 91 T.C. 963,967 (1988)]. ulation of the parties or by a motion of
a summons or an action demanding the the taxpayer after the substantive issues
return of wrongfully levied-upon property Procedures for Obtaining Awards have been resolved [TC Rules 34(b)(8),
[Treasury Regulations section 301.7430- A taxpayer may apply to the IRS for 231(a)(1), 232]. An order awarding or
1(d)(2)(i), (ii)]. In other situations, the tax- administrative costs within 90 days after denying costs or fees is incorporated as
payer must comply with any IRC provision the date on which the final decision of part of the final judgment in the case
that “expressly provides for the pursuit of the IRS is mailed to the taxpayer [IRC and is appealable in the same manner as
administrative remedies” [Treasury section 7430(b)(4)]. The taxpayer can that judgment [IRC section 7430(f)(1);
Regulations sections 301.7430-1(d)(2)(iii), also request fees from the Tax Court or TC Rule 232(f)]. A taxpayer is also
(iv)], such as IRC section 7429(b)(1)(B), other federal court. A taxpayer can bring entitled to an award of fees for the time
which sets a 16-day period for administra- a stand-alone action to recover fees in spent litigating the fee award itself,
tive review of jeopardy assessments). the Tax Court (Tax Court Rule 271), or even if the government’s position on
Protraction of proceedings. Taxpayers it can be done in conjunction with a defi- the fee issue was not unreasonable [St.
are not entitled to an award of costs or fees ciency proceeding in Tax Court, a Claire v. Comm’r, TC Memo 2016-
if they unreasonably protracted the pro- refund suit in a federal district court or 192; Powell v. Comm’r, 891 F.2d 1167,
ceedings [IRC section 7430(b)(3); Hogan the Court of Federal Claims, or in other 1169-72 (5th Cir. 1990)]. q
v. Comm’r, T.C. Memo 2011-176]. The judicial actions, such as a summons
Tax Court has found that a taxpayer unrea- enforcement action. Megan L. Brackney, JD, LLM (Tax),
sonably protracted proceedings where the Most commonly, requests for fees are is a partner at Kostelanetz & Fink LLP,
taxpayer refused to communicate with the heard by the Tax Court after the merits New York, N.Y.

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