Smith v. United States

MEMORANDUM **

After Darrel Smith prevailed against the IRS in an adversarial proceeding, he sought an award of attorneys fees under 26 U.S.C. § 7430 . The bankruptcy court and district court for the District of Nevada determined that neither Smith nor his bankruptcy estate were eligible for fees under § 7430. Smith has timely appealed. In reviewing a bankruptcy court’s decision, this court performs the same function as the district court: reviewing the bankruptcy court’s judgment under an abuse of discretion standard. Pacific Fisheries, Inc. v. United States, 484 F.3d 1103 , 1106 n. 2 (9th Cir.2007); In re Yochum, 89 F.3d 661, 670 (9th Cir.1996).

The record indicates that Smith may have nominally represented his bankruptcy estate in the adversarial proceeding, but the bankruptcy estate never paid or incurred fees in connection with Smith’s representation. Since § 7430 requires a prevailing party to have paid or incurred fees, neither Smith nor his bankruptcy estate are eligible for an award of fees under § 7430. See 26 U.S.C. § 7430 (c)(1)(iii) (defining reasonable litigation costs as “reasonable fees paid or incurred for the ser *344 vices of attorneys m connection with the…