The opinion
T.C. Memo. 2006-118
UNITED STATES TAX COURT
TIMOTHY J. COBURN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6695-04. Filed June 8, 2006.
Richard A. Siegal and Mark S. Gregory, for petitioner.
Michael J. Proto, for respondent.
MEMORANDUM OPINION
WELLS, Judge: The instant matter is before the Court on
petitioner’s motion for litigation fees and costs pursuant to
section 7430 and Rule 231. The issues to be decided are whether
respondent’s position in the court proceeding was substantially
justified and whether the litigation costs petitioner claims are
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reasonable. Unless otherwise indicated, all section references
are to the Internal Revenue Code, and all Rule references are to
the Tax Court Rules of Practice and Procedure.
Background
The parties have not requested a hearing on the instant
motion. Consequently, we base our decision on the parties’
submissions and the record. The underlying facts of this case
are set forth in detail in Coburn v. Commissioner, T.C. Memo.
2005-283 (Coburn I), and we incorporate by reference the portions
of Coburn I that are relevant to our disposition of the instant
motion. The following represents a brief summary of the factual
and procedural background of the instant case.
At the time of filing the petition, petitioner resided in
Glastonbury, Connecticut. During 1996, petitioner received stock
of PhyMatrix Corp. (PhyMatrix) and CareMatrix Corp. (CareMatrix)
with an aggregate value of $1,675,000, and petitioner incurred a
related income tax liability of $621,980. On April 15, 1997,
CareMatrix lent petitioner $621,980, and petitioner pledged
57,248 shares of PhyMatrix common stock (the collateral) as
security on the loan.1 To complete the loan transaction,
petitioner executed a promissory note (the promissory note), a
stock pledge agreement (the stock pledge agreement), and a stock
1
Petitioner concedes that the purpose of the loan was to
provide him with the money necessary to pay the aforementioned
income tax liability.
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transfer power (the stock transfer power). The promissory note,
stock pledge agreement, and stock transfer power are collectively
referred to as the loan documents.
The promissory note became due and payable on April 15,
2000. CareMatrix subsequently demanded payment, but petitioner
refused to pay on grounds that the promissory note was
nonrecourse and that CareMatrix held the collateral. CareMatrix
made no further collection efforts.
Respondent determined that petitioner’s default on the
promissory note resulted in cancellation of indebtedness income
of $750,000 in 2000 and that petitioner was liable for an income
tax deficiency of $277,951 and a section 6662 accuracy-related
penalty of $55,590.20 for that year. Petitioner timely
petitioned this Court for a redetermination. The parties
submitted the case fully stipulated, without trial, pursuant to
Rule 122. In Coburn I, we held that petitioner did not realize
discharge of indebtedness income in 2000 and that petitioner is
not liable for a section 6662 accuracy-related penalty. On
January 17, 2006, petitioner filed the instant motion for award
of litigation costs of $94,860.81.
Discussion
Section 7430(a) provides that a taxpayer may recover
litigation costs incurred in a court proceeding brought against
the United States in connection with the determination of a tax
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or penalty. Litigation costs may be awarded pursuant to section
7430 if (1) the taxpayer has exhausted administrative remedies,
(2) the taxpayer has not unreasonably protracted the court
proceedings, (3) the taxpayer is the prevailing party, and (4)
the claimed litigation costs are reasonable. Sec. 7430(a),
(b)(1), (3), (c)(4). Respondent concedes that petitioner
exhausted all administrative remedies and did not unreasonably
protract the court proceedings. We must decide whether
petitioner is the prevailing party and whether the amount of
petitioner’s claimed litigation costs is reasonable.
Prevailing Party
To qualify as the prevailing party pursuant to section
7430(c)(4)(A), the taxpayer must substantially prevail with
respect to either the amount in controversy or the most
significant issue or set of issues presented, and the taxpayer
must satisfy the net worth requirement of section
7430(c)(4)(A)(ii).2 Respondent concedes that petitioner
substantially prevailed with respect to the amount in controversy
and the most significant issue presented and that petitioner
satisfies the net worth requirement.
2
Sec. 7430(c)(4)(A)(ii), as relevant here, effectively
limits the award of litigation costs to individuals with a net
worth of $2 million or less. Stieha v. Commissioner, 89 T.C.
784, 789-790 (1987).
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Notwithstanding a taxpayer’s satisfaction of the prevailing
party requirements of section 7430(c)(4)(A), section
7430(c)(4)(B)(i) provides that a taxpayer is not treated as the
prevailing party if the United States establishes that its
position in the court proceeding was substantially justified.
Accordingly, the Commissioner has the burden of proof on the
issue of whether the Commissioner’s position was substantially
justified. To be considered substantially justified, the
Commissioner’s position must be justified to a degree that could
satisfy a reasonable person and must have a reasonable basis in
both law and fact. Corkrey v. Commissioner, 115 T.C. 366, 373
(2000). In deciding whether the Commissioner acted reasonably,
we consider both the basis for the Commissioner’s legal position
and the manner in which the position was maintained. Id. at 373.
The mere fact that the Commissioner loses a case does not
establish that the Commissioner’s position was unreasonable, but
the loss of the case may be considered as a factor. Maggie Mgmt.
Co. v. Commissioner, 108 T.C. 430, 443 (1997).
Generally, the Commissioner’s position in a court proceeding
is established in the Commissioner’s answer to the petition. See
Huffman v. Commissioner, 978 F.2d 1139, 1148 (9th Cir. 1992),
affg. in part, revg. in part and remanding T.C. Memo. 1991-144;
Maggie Mgmt. Co. v. Commissioner, supra at 442. In the instant
case, the petition in relevant part states that the
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“determination of the income tax and penalty set forth in the
notice of deficiency is based upon an erroneous determination
that the debt was forgiven by * * * [CareMatrix] during 2000.”3
Respondent’s answer to the petition responded as follows:
“Denies; alleges that the respondent determined a deficiency and
a penalty in income tax.” We understand respondent’s position in
the answer to be that petitioner realized discharge of
indebtedness income from forgiveness of indebtedness of $750,000
in 2000 and that petitioner is liable for an income tax
deficiency of $277,951 and a section 6662 accuracy-related
penalty of $55,590.20.4
We now turn to our analysis of whether respondent has proved
that respondent’s legal position was substantially justified. We
base our analysis on the facts and legal precedents which formed
the basis of that position. See Maggie Mgmt. Co. v.
Commissioner, supra at 443. Relying on Cozzi v. Commissioner, 88
T.C. 435, 445 (1987), respondent contends in the instant motion
that a debt is viewed as having been discharged the moment that
it becomes clear that the debt will never have to be paid and
3
The notice of deficiency’s explanation of adjustments in
relevant part states: “It is determined that $750,000.00 from
the discharge of indebtedness (commonly referred to as COD
income) by CareMatrix is includible in income. Accordingly,
taxable income is increased $750,000.00 for the tax year ended
December 31, 2000.”
4
We note that the parties do not dispute that the loan from
CareMatrix constitutes bona fide indebtedness.
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that the moment is determined by applying a facts and
circumstances analysis. On the basis of the following facts,
respondent contends that a reasonable person could conclude that
no expectation of repayment remained after petitioner’s refusal
to pay in 2000, and, consequently, that respondent’s position was
substantially justified: (1) A “unique relationship” existed
between petitioner and CareMatrix as demonstrated by the loan to
cover petitioner’s income tax liability; (2) the terms of the
loan documents on their face provide for a recourse liability;
(3) petitioner had made no payment as of April 15, 2000; (4)
petitioner abandoned the collateral in 2000; (5) CareMatrix took
no action to collect the liability in 2000, either by selling the
collateral or by commencing an action against petitioner,5 and
(6) nearly 4 years passed from the date on which the promissory
note became due and payable until the date on which respondent
issued the notice of determination.
5
Specifically, respondent’s response to the instant motion
states that respondent’s position was substantially justified on
the basis of, inter alia, the following facts:
f. The note became due in 2000, [petitioner] did
not perform on the note, and [CareMatrix] did not take
advantage of any of the aforementioned recourse
provisions available to it.
g. Upon petitioner’s default, [CareMatrix] did not
foreclose or otherwise take legal title in the
collateral.
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We agree with respondent that a debt is discharged when it
becomes clear that the debt will never have to be paid and that a
facts and circumstances analysis is applied to determine the
timing of the discharge. Cozzi v. Commissioner, supra at 445.
We do not agree, however, that respondent’s legal position was
reasonable on the basis of the facts and legal precedents which
formed the basis of that position.
We note, however, that respondent’s position in the instant
proceedings was not based on the absence of collection activities
by CareMatrix after 2000, the year in issue.6 The test for
determining the time of discharge requires a practical assessment
of the facts and circumstances relating to the likelihood of
repayment. Id. Facts and circumstances after 2000 were
unavailable for assessing the likelihood of repayment during
2000. Accordingly, in deciding whether respondent’s position was
substantially justified, we do not consider any acts or omissions
of CareMatrix after 2000, the year of the alleged discharge. See
Maggie Mgmt. Co. v. Commissioner, supra at 443.
Moreover, while respondent’s position at trial, as stated in
respondent’s trial memorandum, was that the liability was
6
Specifically, respondent contends that the “passage of
nearly four years between the note’s maturity and the issuance of
the notice of deficiency, allowed the reasonable conclusion that,
at the time respondent filed his answer to the petition, there
was no ‘likelihood of payment’”. Below, we separately address
the absence of collection activities during 2000, the year in
issue.
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nonrecourse, respondent’s position in the answer was not based on
the fact now alleged in respondent’s response to the instant
motion that the loan documents on their face provide for a
recourse liability. Respondent’s answer did not address the
issue of whether the liability was recourse or nonrecourse. Even
though respondent’s trial memorandum took the position that the
liability was nonrecourse, respondent’s opening brief contended
that the Federal income tax result in the instant case does not
depend on whether the loan is recourse or nonrecourse.7 Clearly,
as we noted in Coburn I, respondent has not been of one mind
concerning the facts of the instant case. In deciding whether
respondent’s position was substantially justified, we will not
consider the fact now alleged in respondent’s response to the
instant motion, that the loan documents on their face provided
for a recourse liability. See id.
With respect to the “unique relationship” of petitioner and
CareMatrix now alleged by respondent, we understand respondent to
contend that CareMatrix discharged the liability on account of
either mutual interests with petitioner or sympathy for him. We
recognize that the facts demonstrate the existence of an
interrelationship among petitioner, CareMatrix, and PhyMatrix:
7
Although respondent contended that the Federal income tax
result in the instant case does not depend on whether the
liability is recourse or nonrecourse, respondent’s opening brief
disputed petitioner’s contention that the liability was
nonrecourse.
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During 1996, petitioner received stock of CareMatrix and
PhyMatrix valued in the aggregate at $1,675,000; Abraham D.
Gosman served as chief executive officer and chairman of the
board of CareMatrix at all relevant times and appears to have
simultaneously served as chief executive officer and chairman of
the board of PhyMatrix;8 CareMatrix advanced a loan to petitioner
for the purpose of covering petitioner’s income tax liability
incurred in relation to petitioner’s receipt of the CareMatrix
and PhyMatrix stock; and the loan from CareMatrix was secured
solely by petitioner’s PhyMatrix stock. However, despite the
evidence of that interrelationship, respondent conceded that the
loan constituted bona fide indebtedness and offered no evidence
to the contrary. Respondent chose to submit the instant case
fully stipulated without trial rather than placing the issue of
the bona fides of the CareMatrix loan before the Court and
questioning the intent of petitioner and CareMatrix at trial.
Given respondent’s concession, and absent the raising of the
issue of the bona fides of the loan, we will not consider the
facts relating to the interrelationship among petitioner,
CareMatrix, and PhyMatrix for the purpose of the instant motion.
8
Abraham D. Gosman appears to have signed the stock
certificate for the collateral as chairman, president, and chief
executive officer of PhyMatrix. The stock certificate was dated
May 19, 1997. The record contains no further evidence with
respect to the relationship of Abraham D. Gosman and PhyMatrix.
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As we held in Coburn I, regardless of whether the liability
in the instant case is nonrecourse or recourse, petitioner’s
default on the loan and abandonment of the collateral in 2000 did
not result in petitioner’s realizing discharge of indebtedness
income in 2000. In Coburn I, we held that, if the loan were
nonrecourse, any income realized upon petitioner’s loan default
and abandonment of collateral in satisfaction of the liability
would constitute gain on the sale or other disposition of the
collateral pursuant to section 1001(a) rather than discharge of
indebtedness income. See L&C Springs Associates v. Commissioner,
188 F.3d 866, 868 (7th Cir. 1999), affg. T.C. Memo. 1997-469;
sec. 1.1001-2(a)(1), Income Tax Regs. We also held,
alternatively, that, if the loan were recourse, petitioner’s loan
default and abandonment of collateral, alone, would not discharge
the underlying liability because the collateral would not
represent the only source of repayment of the loan. See Lockwood
v. Commissioner, 94 T.C. 252, 260 (1990).
Moreover, in Coburn I, we held that, regardless of whether
the liability is nonrecourse or recourse, the absence of action
by CareMatrix to collect the liability in the year of default did
not result in petitioner’s realizing discharge of indebtedness
income in 2000. With respect to nonrecourse indebtedness, the
liability was satisfied upon petitioner’s abandonment of the
collateral to CareMatrix. See L&C Springs Associates v.
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Commissioner, supra at 868; Carlins v. Commissioner, T.C. Memo.
1988-79. Consequently, no collection activity was necessary.
With respect to recourse indebtedness, CareMatrix could take
action to collect the liability in a subsequent year. Upon a
default by petitioner, the stock pledge agreement provided that
CareMatrix could sell the collateral and apply the proceeds
toward the payment of the loan, and the loan documents did not
preclude the commencement of an action by CareMatrix to recover
directly from petitioner. However, neither the loan documents
nor Massachusetts law required that such a collection action be
commenced during the year of default. On the contrary, the
promissory note expressly provided that a delay by CareMatrix did
not constitute a waiver of its rights:
[CareMatrix] shall not, by any act, delay, omission or
otherwise be deemed to waive any of its rights or
remedies hereunder unless such waiver be in writing and
signed by * * * [CareMatrix], and then only to the
extent expressly set forth therein.
Respondent made no contention and offered no evidence that
CareMatrix affirmatively waived its right to payment from
petitioner. Additionally, the period of limitations for
CareMatrix to commence an action to enforce petitioner’s
repayment did not expire until April 15, 2006.9 See Mass. Gen.
Laws ch. 106, sec. 3-118 (1998 & Supp. 2005). Consequently, if
9
State statutes of limitation are of evidentiary value as to
the timing of the realization of income. Policy Holders Agency,
Inc. v. Commissioner, 41 T.C. 44, 49 (1963).
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the loan were recourse, the absence of any action by CareMatrix
during 2000 to collect the liability would in no way preclude
CareMatrix from commencing such a collection action after 2000.
Because CareMatrix had not forfeited its right to payment as of
the close of 2000, an expectation of repayment remained.
In addition to the aforementioned facts, respondent relied
on the precedent of Cozzi v. Commissioner, 88 T.C. 435 (1987).
In Cozzi v. Commissioner, supra at 437, a limited partnership,
Hap Production Co. (debtor), was formed to provide services
related to the production of motion picture films, and the
taxpayers invested in the debtor as limited partners.10 In 1975,
the debtor received a nonrecourse loan from Sargon Etablissement
(lender). Id. at 438. The debtor agreed to repay principal and
interest under a repayment schedule ending in 1980. Id. As
security for the nonrecourse loan, the lender retained a first
position lien in all proceeds generated under a motion picture
production agreement between the debtor and Map Films, Ltd. (the
production agreement).11 Id. The production agreement
10
In Cozzi v. Commissioner, 88 T.C. 435, 447 (1987), we
stated, “The record makes clear that Hap was a tax shelter which
generated significant tax benefits”.
11
Pursuant to the production agreement, the debtor agreed to
perform certain services related to the production of a motion
picture in return for the payment of $1,160,000 and certain costs
incurred by the debtor. Cozzi v. Commissioner, supra at 437.
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represented the lender’s sole security on the loan. See id. at
439.
The debtor made no payment and engaged in no communication
with the lender with respect to the loan during 1977, 1978, 1979,
1980, and 1981. Id. at 439-440. The Commissioner contended that
the production agreement became worthless and was abandoned by
the debtor in 1980, that the debtor was released from the debt in
1980, and that the debtor realized income as a result of that
release. Id. at 446. The taxpayers conceded that an abandonment
of the production agreement would result in ordinary income but
contended that the production agreement did not lose its value
and that the debtor did not abandon the production agreement in
1980. Id. Applying a facts and circumstances analysis, we held
that the production agreement had become worthless as of 1980,
that the debtor had no intention of enforcing its rights under
the production agreement, and that the lender had no intention of
enforcing its rights against the debtor under the loan agreement.
Id. at 446-447. We further held that the failure of the debtor
to make the scheduled final payment to the lender in 1980
constituted an “identifiable event” evidencing the debtor’s
abandonment of the worthless production agreement. Id. at 447.
We concluded that the abandonment by the debtor demonstrated
that the discharge occurred in 1980 as asserted by the
Commissioner. Id. at 445-448.
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In the instant case, respondent confused both the facts and
the holding of Cozzi. Respondent’s trial memorandum stated as
follows:
I.R.C. § 61(a)(12) provides that gross income
includes income from discharge of indebtedness. On
April 15, 2000, when petitioner’s liability for a loan
from CareMatrix for $621,980 plus interest of $128,080
(total of $750,000,) became due, petitioner defaulted.
Petitioner had executed a non-recourse promissory note,
and the only collateral for the loan involved
petitioner’s 57,248 shares of common stock of
PhyMatrix. CareMatrix opted not to take those shares
of stock pursuant to the default.
In Cozzi v. Commissioner, 88 T.C. 435 (1987), the
lender abandoned the loan’s security due to its nominal
value. The Court determined that there was income from
discharge of indebtedness income in that situation,
stating: “The moment it becomes clear that a debt will
never have to be paid, such debt must be viewed as
having been discharged.” Id. at 445.
Thus, petitioner received $750,000 in income from
discharge of indebtedness for the year 2000 pursuant to
section 61(a)(12).
Respondent’s trial memorandum therefore suggests that Cozzi,
stands for the proposition that a debtor realizes discharge of
indebtedness income upon the lender’s abandonment of collateral
securing a nonrecourse loan. Respondent’s opening brief also
cites Cozzi, for the proposition that a lender’s abandonment of
collateral securing a nonrecourse loan results in discharge of
indebtedness income to the borrower, and the opening brief argues
at length that CareMatrix abandoned the collateral in 2000.
Respondent’s reply brief summarizes respondent’s position as
follows: “In sum, * * * [CareMatrix] ignored all of its rights
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and remedies under the Note and abandoned the collateral in 2000.
Such abandonment was the ‘identifiable event’ that made it clear
[petitioner] would not have to repay his obligation to
* * * [CareMatrix]. As a result, * * * [petitioner] realized
discharge of indebtedness income of $750,000 in 2000.”
In Cozzi v. Commissioner, supra at 445-447, however, we held
that the abandonment of the collateral by the debtor--not the
lender--evidenced the moment of discharge. The lender could not
have abandoned the collateral because the lender never exercised
control over the production agreement. Id. at 440 (“During
* * * [the years 1977, 1978, 1979, 1980, and 1981], * * * [the
debtor] did not take any action to cause the collateral securing
the debt to * * * [the lender] to be conveyed to * * * [the
lender].”). Even if the lender exercised control over the
collateral upon the debtor’s abandonment in 1980, a borrower’s
abandonment of the sole collateral securing a nonrecourse loan
terminates the debt, and the income tax consequences to the
borrower are determined at the time of the termination.12 See
L&C Springs Associates v. Commissioner, 188 F.3d at 868; Carlins
v. Commissioner, T.C. Memo. 1988-79. Consequently, any
12
We note that the actions of the lender with respect to the
loan might, as in Cozzi v. Commissioner, 88 T.C. at 446-447,
evidence the debtor’s abandonment of the collateral by
demonstrating the collateral’s worthlessness.
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subsequent abandonment of the collateral by the lender would have
no Federal income tax consequences for the debtor.
Moreover, as we noted in Coburn I, Cozzi v. Commissioner, 88
T.C. 435 (1987), is of limited precedential value under the facts
of the instant case. The parties in Cozzi did not dispute
whether the abandonment of collateral results in gain on the sale
or other disposition of property or in discharge of indebtedness
income, and, consequently, the Court did not address the issue.
On the basis of the foregoing, we conclude that respondent’s
position did not have a reasonable basis in either law or fact.
Additionally, respondent failed to maintain that position with
consistency and accuracy throughout the instant proceedings.
Accordingly, we hold that, for purposes of section
7430(c)(4)(B)(i), respondent has failed to establish that
respondent’s position was substantially justified. We now turn
to our analysis of whether the amount of litigation costs
petitioner seeks is reasonable.
Reasonable Litigation Costs
“Reasonable litigation costs” include reasonable court costs
and reasonable fees paid or incurred for the services of
attorneys in connection with the court proceeding. Sec.
7430(c)(1)(A), (B)(iii). Pursuant to section 7430(c)(1), the
amount of attorney’s fees that may be awarded is limited to a
statutorily prescribed amount, as adjusted for inflation. For
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purposes of the instant motion, the inflation-adjusted statutory
rate is $150 per hour. See Rev. Proc. 2003-85, sec. 3.33, 2003-2
C.B. 1184, 1190; Rev. Proc. 2004-71, sec. 3.35, 2004-2 C.B. 970,
976. Attorney’s fees, however, may be awarded at a higher rate
if justified by a special factor such as the limited availability
of qualified attorneys, the difficulty of the issues presented in
the case, or the local availability of tax expertise. Sec.
7430(c)(1)(B)(iii). Petitioner bears the burden of proving that
claimed litigation costs are reasonable for purposes of section
7430(c)(1). See Rule 232(e).
Petitioner seeks to recover the following attorney’s fees:13
Attorney Hours Rate Amount Billed
Mark S. Gregory 36.7 $496.39 $18,217.50
Richard Siegal 92.2 439.91 40,560.00
D. W. Knight-Brown 66.0 381.43 25,174.50
Jeffrey A. Letalien 6.1 220.00 1,342.00
Kelley Galica-Peck 7.3 395.00 2,883.50
Total 208.3 88,177.50
Respondent contends that any award of attorney’s fees should be
limited to the statutory rate of $150 per hour on grounds that no
special factor justifies a higher rate. Petitioner contends that
the aforementioned rates are justified because (1) the attorney’s
fees are based on the standard hourly rates charged by
13
Remaining fees that petitioner seeks to recover in the
instant motion do not constitute attorney’s fees for purposes of
sec. 7430(c)(1)(B)(iii) and are, therefore, treated as court
costs. Respondent’s objection to the court costs petitioner
seeks are addressed below.
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petitioner’s attorneys; (2) the hourly rates charged by
petitioner’s attorneys are consistent with the hourly rates
prevailing in the community for the type of work involved, as
demonstrated by the affidavits of Connecticut tax attorneys
Samuel M. Hurwitz and Mark G. Sklarz; (3) petitioner’s attorneys
possessed expertise in both tax law and relevant Massachusetts
commercial law; (4) the representation of petitioner was made
more difficult by respondent’s changing legal theory during the
court proceeding; (5) the effectiveness of petitioner’s
representation is demonstrated by the Court’s holding in
Coburn I; and (6) respondent rejected numerous offers from
petitioner to settle the matter.
We conclude that petitioner has not established that there
was a limited availability of qualified attorneys for the instant
proceedings, that there was a limited availability of tax
expertise, or that the issues presented in Coburn I were of
sufficient difficulty to qualify as a special factor under
section 7430(c)(1)(B)(iii). Accordingly, we limit the award of
the aforementioned attorney’s fees to the statutory rate of $150
per hour.
Finally, we turn to our analysis of whether the amount of
costs petitioner seeks is reasonable. Those claimed costs
include (1) fees of $608.50 for the services of paralegals,
clerks, and law clerks and (2) disbursements of $6,074.81.
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Respondent disputes the award of costs for certain
disbursements that respondent contends petitioner did not
adequately describe. Rule 231 provides that a party claiming
litigation costs for which the parties have not reached an
agreement must file a written motion that includes a statement of
the specific litigation costs claimed and a supporting affidavit
setting forth the nature and amount of each item. Rule
231(a)(2), (b), (d). Petitioner timely filed a motion with this
Court in compliance with Rule 231. With the motion, petitioner
filed the supporting affidavit of his attorney Richard A. Siegal
and a detailed billing record (the billing record) identifying
each “out-of-pocket disbursement” billed to petitioner with
respect to the instant proceedings.14 The billing record
chronologically sets forth the date and amount of each
disbursement and identifies each disbursement with a numeric
code. The billing record separately describes each numeric code.
For instance, the billing record sets forth a disbursement of
$461.66 on February 8, 2005, and identifies the disbursement with
the numeric code “00256”. Separately, the billing record
describes the numeric code “00256” as “Lexis Research”.15 On the
14
Petitioner also filed an additional affidavit in
compliance with Rule 232(d).
15
As noted above, respondent generally contends that
petitioner’s descriptions of the claimed costs were inadequate.
With respect to this example, respondent contended that
(continued...)
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basis of the foregoing, we conclude that the billing record
sufficiently describes the nature and amount of each item of
costs petitioner claims. Respondent makes no further objections.
Consequently, we hold that the litigation costs petitioner claims
are reasonable.16
In conclusion, we hold that petitioner is entitled to an
award of reasonable litigation costs of $37,928.31, including
attorney’s fees of $31,245 and costs of $6,683.31.
To reflect the foregoing,
An appropriate order will be
issued.
15
(...continued)
petitioner provided no description. As explained above, however,
the description of those charges is evident upon a careful review
of the billing record.
16
Respondent’s response to petitioner’s motion for an award
of litigation costs states: “Unless already stated above,
respondent has no additional disagreement with other allegations
in the motion.”