     09-3600-bk
     United States v. Hudson

 1                       UNITED STATES COURT OF APPEALS
 2
 3                             FOR THE SECOND CIRCUIT
 4
 5                                August Term, 2010
 6
 7
 8   (Argued: September 23, 2010             Decided: November 10, 2010)
 9
10                              Docket No. 09-3600-bk
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13
14   UNITED STATES DEPARTMENT OF JUSTICE, TAX DIVISION,
15
16                      Appellee,
17
18   UNITED STATES OF AMERICA,
19
20                      Appellee-Cross Appellant,
21
22               -v.-
23
24   PAUL S. HUDSON,
25
26                      Debtor-Appellant,
27
28   GREGORY G. HARRIS, Chapter 7 Trustee,
29
30                      Trustee.
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33

34         Before:             JACOBS, Chief Judge, KATZMANN and
35                             LIVINGSTON, Circuit Judges.
36
37         Debtor-Appellant Paul S. Hudson appeals from a July 8,

38   2009 judgment of the United States District Court for the

39   Northern District of New York (Scullin, J.), reversing the

40   decision of the Bankruptcy Court of the Northern District of
 1   New York (Littlefield, J.), which awarded Mr. Hudson

 2   attorney’s fees under 26 U.S.C. § 7430.    Mr. Hudson, a

 3   lawyer, is appearing pro se here, as he did in the

 4   bankruptcy court and the district court.    The district court

 5   held that a lawyer appearing pro se cannot be awarded

 6   attorney’s fees pursuant to 26 U.S.C. § 7430.    We affirm.

 7                                 Paul S. Hudson, Law Offices of
 8                                 Paul S. Hudson, Sarasota, FL,
 9                                 (Troy A. Morgan, Silver Spring,
10                                 MD, on the brief), for
11                                 Debtor-Appellant.
12
13                                 Richard L. Parker, Department of
14                                 Justice, Tax Division (John A.
15                                 DiCicco, Acting Assistant
16                                 Attorney General, Bruce R.
17                                 Ellisen, Attorney, on the
18                                 brief), Washington, D.C., for
19                                 Appellee.
20
21
22   DENNIS JACOBS, Chief Judge:
23
24       Debtor Paul S. Hudson, having successfully challenged a

25   claim lodged against him in the bankruptcy court by the

26   Internal Revenue Service (“IRS”), sought attorney’s fees

27   pursuant to 26 U.S.C. § 7430 of the Internal Revenue Code

28   (“IRC”), which permits the prevailing party to recover

29   litigation costs, including attorney’s fees, in any

30   proceeding brought by the United States in connection with

31   the collection of interest on past due taxes.    Mr. Hudson, a

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 1   lawyer who appeared pro se in the bankruptcy court (as well

 2   as in the district court and now here), thus sought

 3   attorney’s fees on account of his legal work on his own

 4   behalf.   The Bankruptcy Court of the Northern District of

 5   New York (Littlefield, J.) awarded IRC § 7430 attorney’s

 6   fees, but the United States District Court for the Northern

 7   District of New York (Scullin, J.) reversed.   Mr. Hudson

 8   appeals from the district court’s July 8, 2009 judgment.     We

 9   affirm.

10

11                                 I

12       Mr. and Mrs. Hudson were principals in a real estate

13   rental firm that deemed its maintenance workers to be

14   independent contractors for whom the firm paid no federal

15   employment withholding tax.   After an audit, the IRS

16   determined that the workers were employees, and assessed

17   withholding and Federal Insurance Contributions Act (“FICA”)

18   taxes for 1989 and 1990.   See 26 U.S.C. §§ 3102(a), 3111,

19   3401, 3402(a), 3403.   The firm failed to pay, and the IRS

20   assessed penalties pursuant to IRC § 6672 against Mr. and

21   Mrs. Hudson in the amount of the unpaid withholding taxes.

22   When the firm filed for bankruptcy in 1995, the IRS sought


                                   3
 1   to recover the delinquent employment taxes from the estate.

 2   As to their personal exposure, the Hudsons entered into a

 3   Stipulation of Settlement of Claims (“Stipulation”) which

 4   provided that “[t]he total liability of Eleanor and Paul

 5   Hudson shall be the trust fund portion” of the past due

 6   taxes in the amount of $30,838.49.

 7       On November 12, 1999, Mr. Hudson himself filed for

 8   bankruptcy.   The IRS filed an amended proof of claim

 9   seeking, inter alia, $50,026.61, which represented the

10   employment tax penalty in the amount of $27,916.49 (i.e.,

11   the unpaid past due taxes owed by the firm) plus statutory

12   interest in the amount of $22,110.12.    While the bankruptcy

13   petition was pending, the IRS sent Mrs. Hudson a final

14   notice of its intent to levy penalties exceeding the amount

15   of her settlement per the Stipulation.    After a collection-

16   due-process hearing pursuant to IRC § 6330, the IRS Office

17   of Appeals sustained the proposed collection action, and

18   Mrs. Hudson sought review.   The United States District Court

19   for the Northern District of New York ruled that the plain

20   wording of the Stipulation absolved her of liability for any

21   interest.

22       Relying on the district court’s ruling, Mr. Hudson


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 1   argued in his bankruptcy case that he likewise was not

 2   liable for interest accrued on the employment tax penalty.

 3   The bankruptcy court agreed.   Having thus prevailed, Mr.

 4   Hudson moved for attorney’s fees pursuant to IRC § 7430.

 5   Citing the Fifth Circuit’s holding in Cazalas v. United

 6   States Department of Justice, 709 F.2d 1051 (5th Cir. 1983)

 7   (awarding fees in the context of the Freedom of Information

 8   Act), the bankruptcy court awarded fees.1   The bankruptcy

 9   court reasoned that “[b]y allowing reasonable fees to pro se

10   attorney litigants, the court will promote the ‘vigorous

11   advocacy’ policy advanced by the Court of Appeals for the

12   Fifth Circuit in Cazalas while still retaining the ability

13   to control fees awarded based on the facts of the case.”     In

14   re Hudson, 345 B.R. 477, 484 (Bankr. N.D.N.Y. 2006).

15       On the Government’s appeal, the district court

16   reversed, relying on the reasoning in Kay v. Ehrler, 499

17   U.S. 432 (1991), McCormack v. United States, 891 F.2d 24

18   (1st Cir. 1989) (per curiam), and United States v.

19   McPherson, 840 F.2d 244 (4th Cir. 1988).    This appeal

20   followed.

          1
            Although Mr. Hudson sought $21,106, the Bankruptcy
     Court found the fee application “replete with deficiencies
     and problems,” and awarded $6,831.25. In re Hudson, 364
     B.R. 875, 879, 882 (Bankr. N.D.N.Y. 2007).
                                    5
 1

 2                                   II

 3       Although we generally review a district court’s award

 4   of attorney’s fees for an abuse of discretion, see Mautner

 5   v. Hirsch, 32 F.3d 37, 39 (2d Cir. 1994), Mr. Hudson’s

 6   contention on appeal is that the denial of the fee award was

 7   based on an error of law.     We review rulings of law de novo.

 8   Baker v. Health Mgmt. Sys., Inc., 264 F.3d 144, 149 (2d Cir.

 9   2001).

10

11                                  III

12       Section 7430 of the IRC provides that “[i]n any

13   administrative or court proceeding which is brought by or

14   against the United States in connection with the

15   determination, collection, or refund of any tax, interest,

16   or penalty . . . the prevailing party may be awarded a

17   judgment or a settlement for . . . reasonable litigation

18   costs incurred in connection with such court proceeding.”

19   26 U.S.C. § 7430(a)(2).     “[R]easonable litigation costs” is

20   defined (inter alia) to “include[] reasonable fees paid or

21   incurred for the services of attorneys in connection with

22   the court proceeding.”    26 U.S.C. § 7430(c)(1)(B)(iii).


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 1       In other statutory contexts, this Court has ruled that

 2   a lawyer appearing pro se is not entitled to attorney’s

 3   fees.   See Pietrangelo v. U.S. Army, 568 F.3d 341, 342 (2d

 4   Cir. 2009) (per curiam) (Freedom of Information Act);

 5   Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 694-95 (2d

 6   Cir. 1998) (Title VII and 42 U.S.C. § 1981); c.f. S.N. ex

 7   rel. J.N. v. Pittsford Cent. School Dist., 448 F.3d 601, 604

 8   (2d Cir. 2006) (attorney-parents representing children in

 9   actions brought under the Individuals with Disabilities

10   Education Act).   But we have not previously considered

11   whether a lawyer appearing pro se is entitled to fees under

12   IRC § 7430.

13       Finding no reason to depart from our reasoning in

14   Pietrangelo or Hawkins, and joining our sister Circuits that

15   have considered this provision of the IRC, see McCormack v.

16   United States, 891 F.2d 24, 25 (1st Cir. 1989) and United

17   States v. McPherson, 840 F.2d 244, 245 (4th Cir. 1988), we

18   hold that lawyers appearing pro se who prevail in

19   administrative or court proceedings against the United

20   States are ineligible for attorneys’ fees under IRC § 7430.

21                                 A

22       Section 7430 of the IRC provides that a prevailing


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 1   party is entitled to collect “reasonable fees paid or

 2   incurred for the services of attorneys in connection with

 3   the court proceeding.”     26 U.S.C. § 7430(c)(1)(B)(iii)

 4   (emphasis added).   Mr. Hudson may recover therefore only if

 5   he either paid or incurred fees for the services of an

 6   attorney.   Mr. Hudson never paid an attorney; so the

 7   question is whether he may be said to have incurred

 8   attorney’s fees by virtue of the time he invested litigating

 9   the tax issue in bankruptcy court.

10       “Incur” means “[t]o suffer or bring on oneself (a
11   liability or expense).”     Black’s Law Dictionary 836 (9th ed.
12   2009).   In this context, a “liability” is “[a] financial or

13   pecuniary obligation; debt.”     Id. at 997.   An “expense” is

14   “[a]n expenditure of money, time, labor, or resources to

15   accomplish a result.”     Id. at 658.   At most one could say

16   that Mr. Hudson brought on himself an expenditure of time

17   defending himself against the IRS.      While his time could be

18   characterized as an “expense,” it cannot be characterized as

19   a “fee,” which is defined as a “charge for labor or

20   services, [especially] professional services.”      Id. at 690.

21       Moreover, Mr. Hudson never incurred fees for the

22   services of an attorney because an “attorney” is “one who is

23   designated to transact business for another” or is “a legal

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 1   agent.”    Id. at 147.   An agent is “a representative”; so Mr.
 2   Hudson cannot have acted as an agent for himself, id. at 72;
 3   see Duncan v. Poythress, 777 F.2d 1508, 1518, 1519 (11th

 4   Cir. 1985) (Roney, J., dissenting) (cataloguing the

 5   definition of “attorney” from more than two dozen

 6   dictionaries and finding that “[w]ithout exception they

 7   define the word ‘attorney’ in terms of someone who acts for

 8   another, someone who is employed as an agent to represent

 9   another, someone who acts at the appointment of another”)

10   (emphasis in original); see also Frisch v. Comm’r, 87 T.C.

11   838, 846 (1986) (“An ‘attorney’ is essentially an agent for

12   another.    Without the ‘other’ there can be no attorney,

13   merely a pro se litigant who happens to earn a living as a

14   lawyer.    At any given time, an individual can be either a

15   pro se litigant or an attorney, but not both.”); 2A C.J.S.

16   Agency § 24 (2010) (“The parties to an agency relationship

17   are the principal and the agent, and an agent cannot exist

18   without a then–existing principal.”); Black’s Law Dictionary

19   1341 (9th ed. 2009) (defining pro se to mean “[o]ne who

20   represents oneself in a court proceeding without the

21   assistance of a lawyer”).

22       In holding that Mr. Hudson is ineligible to receive

23   attorney’s fees under the plain wording of IRC § 7430, we

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 1   join our sister Circuits that have addressed this issue, as

 2   well as the Tax Court, all of which have held that lawyers

 3   appearing pro se “did not pay any fees for legal services

 4   nor incur any debts which remain outstanding.”   McPherson,

 5   840 F.2d at 245; see Frisch, 87 T.C. at 845-47 (“The simple

 6   truth is that the plain language of section 7430 cannot be

 7   read to include lost opportunity costs, but is limited to

 8   actual expenditures . . . .   In representing himself,

 9   petitioner did not become liable to another person for

10   attorney fees nor did he bring down upon himself any

11   debt.”).

12       While Mr. Hudson did expend time and effort to litigate

13   (successfully) the issue of the IRS’s interest assessment on

14   the settlement amount, he paid no out-of-pocket expenses and

15   incurred no obligation for the services of an attorney and

16   therefore is not entitled to attorney’s fees pursuant to IRC

17   § 7430.

18                                 B

19       Awarding attorneys’ fees to lawyers appearing pro se

20   would not serve the policy of fee-shifting statutes such as

21   IRC § 7430.   In Pietrangelo v. United States Army, we

22   declined to award fees to a lawyer appearing pro se under


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 1   the fee-shifting provision of the Freedom of Information

 2   Act, 5 U.S.C. § 552(a)(4)(E).        Pietrangelo, 568 F.3d at 341.

 3   Citing Kay v. Ehrler, 499 U.S. 432 (1991), which denied fees

 4   to a lawyer appearing pro se under 42 U.S.C. § 1988, we

 5   explained:

 6       [T]he Supreme Court reasoned that although the fee-
 7       shifting provision of section 1988 was “no doubt
 8       intended to encourage litigation protecting civil
 9       rights,” [Kay, 499 U.S.] at 436, the “overriding
10       statutory concern [was] the interest in obtaining
11       independent counsel for victims of civil rights
12       violations,” id. at 437. Representation by independent
13       counsel, the Supreme Court explained, has distinct
14       advantages over even a skilled lawyer who represents
15       himself. Id. To give just two examples, (a) ethical
16       considerations may make it inappropriate for a lawyer
17       to appear as a witness, and (b) a pro se lawyer is
18       “deprived of the judgment of an independent third party
19       in framing the theory of the case, evaluating
20       alternative methods of presenting evidence, cross-
21       examining hostile witnesses, formulating legal
22       arguments, and in making sure that reason, rather than
23       emotion, dictates the proper tactical response to
24       unforeseen developments in the courtroom.” Id.
25
26            Given the advantages of employing independent
27       counsel, the Supreme Court concluded that the statutory
28       policy of “furthering the successful prosecution of
29       meritorious claims” was best served by a rule that
30       “creates an incentive to retain counsel in every such
31       case.” Id. at 438. Permitting a fee award to a pro se
32       litigant, even one who is a lawyer, would instead
33       “create a disincentive to employ counsel.” Id.
34       Accordingly the Supreme Court held that pro se lawyers
35       did not fall within the scope of the fee-shifting
36       provision.
37
38   568 F.3d at 343-44.



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 1       The policy underlying statutes such as IRC § 7430 is to

 2   incentivize litigants to retain counsel in order to prevent

 3   overreaching by the IRS; awarding pro se litigants

 4   attorneys’ fees would run counter to that policy by

 5   discouraging litigants who are lawyers from obtaining

 6   outside, independent counsel.

 7       The fee-shifting provision of IRC § 7430, like the fee-

 8   shifting provisions of 42 U.S.C. § 1988 and 5 U.S.C.

 9   § 552(a)(4)(E), exists to further “the successful

10   prosecution of meritorious claims” and to ensure that

11   taxpayers are not forced into settlements with the IRS

12   because the cost of litigation outweighs the amount in

13   controversy.   Kay, 499 U.S. at 438.       We “find no reason to

14   distinguish the principles articulated in Kay and conclude

15   that they apply with ‘equal force’ to [Mr. Hudson’s] motion

16   for fees under [IRC § 7430].”        Pietrangelo, 568 F.3d at 345

17   (quoting Ray v. U.S. Dep’t of Justice, 87 F.3d 1250, 1252

18   (11th Cir. 1996)).

19                             CONCLUSION

20       For the foregoing reasons, we AFFIRM the judgment of

21   the district court.




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