Amann v. Comm. IRS ( 1994 )

USCA1 Opinion

          December 5, 1994
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT



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        No. 94-1110

                           RICHARD AMANN AND BARBARA AMANN,

                               Petitioners, Appellants,

                                          v.

                          COMMISSIONER OF INTERNAL REVENUE,

                                Respondent, Appellee.


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                       APPEAL FROM THE UNITED STATES TAX COURT

                        [Hon. Peter J. Panuthos, Chief Judge]
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                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
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                         Campbell, Senior Circuit Judge, and
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                                Boudin, Circuit Judge.
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            Richard Amann on brief pro se.
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            Loretta C.  Argrett, Assistant  Attorney General,  Gary R.  Allen,
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        Gilbert S.  Rothenberg and  S. Robert Lyons,  Attorneys, Tax  Division
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        Department of Justice, on brief for appellee.


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                 Per  Curiam.    Petitioners  Richard and  Barbara  Amann
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            appeal  a decision  by the  United  States Tax  Court denying

            their  request  for   administrative  and  litigation  costs,

            pursuant to 26 U.S.C.   7430, in connection with  proceedings

            concerning their tax returns for 1987, 1990 and 1991, and for

            a return of  interest paid on their  1987 tax liability.   We

            affirm the decision  essentially for the reasons given by the

            Tax  Court in its  memorandum and opinion  dated November 22,

            1993.   

                 Petitioners have failed to  meet their burden of showing

            that  the  "position of  the  United  States"  in either  the

            administrative or judicial phases of the proceedings relating

            to  the  1990 and  1991  tax returns  was  not "substantially

            justified."   See Kenagy v.  United States, 942 F.2d 459, 463
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            (8th Cir. 1991); Zinniel v. Commissioner, 883 F.2d 1350, 1356
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            (7th  Cir.  1989), cert.  denied,  494  U.S.  1078  (1990).
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            Petitioners are  barred from seeking costs  relating to their

            1987  tax return  because their  request was filed  after the

            date on which the  decision in that case  became final.   See
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            Sanders  v. Commissioner, 813  F.2d 859, 862  (7th Cir. 1987)
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            (court  without jurisdiction  to entertain  motion for  costs

            pursuant  to   7430 after case has been dismissed); 26 U.S.C.

              7481 (decision  of Tax Court becomes  final upon expiration

            of  time allowed  for filing an  appeal).  The  Tax Court was

            likewise without jurisdiction to  entertain their claim for a



















            refund of interest paid in regard to their 1987  return.  See
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            Perkins v. Commissioner, 92 T.C. 749, 752 (1989).
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                 Affirmed.
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