UNITED STATES TAX COURT



     JOHN M. & REBECCA A. DUNAWAY, Petitioners v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 10542-03.              Filed March 14, 2005.



     Petitioners are pro se litigants.

     Held: Under sec. 7430, I.R.C., petitioners are
not entitled to recover as litigation costs any amounts
representing the value of their research time.

     Held, further, petitioners are entitled to recover
as litigation costs out-of-pocket postage and delivery
costs and their mileage costs and parking fees incurred
to attend a court hearing.



John M. Dunaway and Rebecca A. Dunaway, pro sese.

Thomas J. Travers and Aimee R. Lobo-Berg, for respondent.
                               - 2 -

                              OPINION


     SWIFT, Judge:   This case is before us under section 7430 on

petitioners’ motion for litigation costs.    Respondent determined

a deficiency of $728 in petitioners’ 2001 Federal income tax,

which determination respondent has conceded.

     Respondent agrees that his position in his notice of

deficiency was not substantially justified and that petitioners

are to be regarded herein as the prevailing party for purposes of

the instant motion for litigation costs.    Also, respondent has

conceded that petitioners are entitled to recover $95.06 in

litigation costs consisting of the $60 Court filing fee and

$35.06 in postage and delivery costs.

     The primary issues for decision are whether the pro se

petitioners herein are entitled to recover as litigation costs:

(1) Amounts representing the value of their research time and

(2) additional out-of-pocket postage and delivery costs and out-

of-pocket mileage costs and parking fees incurred by petitioner1

to attend the Court hearing in this matter.

     Unless otherwise indicated, all section references are to

the Internal Revenue Code as amended, and all Rule references are

to the Tax Court Rules of Practice and Procedure.




     1
        All references to petitioner in the singular are to
petitioner John M. Dunaway.
                                - 3 -

Background

     At the time the petition was filed, petitioners resided in

Meridian, Idaho.

     Petitioners timely filed their 2001 joint Federal income tax

return.   On June 16, 2003, respondent mailed to petitioners the

notice of deficiency.

     On June 21, 2003, petitioners mailed to the Court by

certified mail a three-page letter, which was filed by the Court

as petitioners’ petition (original petition).    With the original

petition, petitioners did not submit the $60 Court filing fee

that was due.   Rule 20(b).   The envelope in which the original

petition was mailed is in evidence, and a postage cost therefor

of $4.65 is indicated on the envelope.

     On August 26, 2003, petitioners mailed to the Court by

certified mail an amended petition, in proper form, and included

the $60 filing fee.

     On or about March 19, 2004, after various communications

with petitioners,2 respondent conceded the $728 tax deficiency

determined against petitioners, and petitioners mailed to

respondent’s Portland office by certified mail a letter in which

petitioners set forth their claim for litigation costs.

     On April 19, 2004, at a cost of $15.95, petitioners

delivered to the Court via Federal Express their motion for an

award of litigation costs with an attached expense report

     2
        The nature of these referenced communications is not
reflected in the record, and petitioners claim no costs relating
thereto.
                               - 4 -

(original expense report).   Therein, petitioners claimed costs of

$60 for the Court filing fee, $66.29 for postage, delivery, and

office supplies, $200 for lost wages, and $783 for the purported

value of petitioners’ research time.3

     Also in April of 2004, at a cost of $13.77, petitioners

delivered to respondent via Federal Express additional documents

relating to their motion for litigation costs.

     On May 4, 2004, a hearing on petitioners’ motion for

litigation costs was held in Boise, Idaho.   To attend the

hearing, petitioner drove his car the 30-mile round trip from

petitioners’ home in Meridian to the courthouse in Boise,4 and

petitioner incurred $3 to park his car while attending the Court

hearing.   Petitioner’s wife did not accompany petitioner to the

courthouse and apparently went to work.

     On June 8, 2004, petitioners mailed to the Court by

certified mail a revised five-page expense report which claimed

$10.50 relating to the automobile mileage costs to travel to the




     3
        Petitioners calculated the $200 in lost wages in
anticipation that both petitioners would attend the scheduled
Court hearing on May 4, 2004, and that each petitioner would lose
$100 in wages to do so. The $783 for petitioners’ research time
was calculated at $5.25 per hour for 141 hours. Included in the
research time are time estimates for making phone calls and
emails, which time also apparently was calculated at the same
$5.25 hourly rate.
     4
        Under Fed. R. Evid. 201, the Court takes judicial notice
of the location of Meridian, Idaho, approximately 15 miles from
Boise.
                              - 5 -

May 4, 2004, Court hearing5 and $3 relating to the parking fee.

The revised expense report also reflected a reduction to $88.96

for petitioner’s lost wages,6 an increase to $158.64 for postage,

delivery, and office supplies, and an increase to $1,248.90

relating to the purported value of petitioners’ research time.7

     On September 28, 2004, petitioners also mailed to the Court

by certified mail petitioners’ reply to respondent’s memorandum

brief (petitioners’ reply brief).   The envelope in which

petitioners’ reply brief was mailed is in evidence, and a mailing

cost of $4.42 is indicated thereon.   We note that petitioners

apparently did not serve upon respondent’s counsel copies of any

of the documents that petitioners submitted to the Court, and

petitioners do not claim any postage or delivery costs relating

to service copies.

     Below is a schedule, by category, of petitioners’ claimed

litigation costs, reflecting the differing amounts petitioners

claim in their original and in their revised expense reports:




     5
        Petitioners calculated the $10.50 mileage costs at $0.35
per mile for 30 miles.
     6
        The reduced $88.96 for lost wages was calculated at
$11.12 per hour for 8 hours.
     7
        The increased $1,248.90 relating to petitioners’ research
time actually reflected a reduction from 141 hours in the
original expense report to 128 hours in the revised expense
report, but the increased $1,248.90 apparently included
additional alleged costs of phone calls, copying, and office
supplies. The record does not indicate the hourly rate
petitioners used in their revised calculation.
                               - 6 -

                                 Original       Revised
          Type of Cost        Expense Report Expense Report
     Court filing fee            $   60.00      $    60.00
     Research time                  783.00        1,248.90
     Lost wages                     200.00           88.96
     Postage, delivery, and
       office supplies                66.29        158.64
     Mileage                          --            10.50
     Parking                          --             3.00
         Total                    $1,109.29     $1,570.00


Discussion

     A prevailing party may be awarded reasonable litigation

costs incurred in connection with a case filed in this Court.

Sec. 7430(a); Rule 230.

     Respondent concedes that petitioners qualify as prevailing

parties under the requirements of section 7430(c)(4) and that no

limitation under section 7430(b) applies to preclude petitioners

from qualifying for an award of litigation costs under section

7430(a).   As stated above, respondent concedes that petitioners

are entitled to an award of litigation costs of $60 for the Court

filing fee and $35.06 for various postage and delivery costs.


Value Relating to Research Time

     Petitioners claim that they are entitled to recover as

litigation costs under section 7430 $1,248.90 relating to the

value of petitioners’ research time.8




     8
        With two exceptions, we treat as the costs at issue
herein only those costs reflected in petitioners’ revised expense
report.
                               - 7 -

     Respondent argues that petitioners are not entitled to

recover anything for the value relating to petitioners’ research

time.

     The courts have consistently held that under section 7430

pro se taxpayers may not be awarded an amount reflecting the

value of their personal time in handling the litigation, even

though fees taxpayers pay to attorneys to handle the litigation

would be recoverable.   See, e.g., Frisch v. Commissioner, 

, 846-847 (1986) (pro se taxpayer, who also was an attorney,

not entitled to the value of his time in handling the

litigation).   Petitioners are not entitled to an award under

section 7430 with respect to the value or costs relating to

petitioners’ research time.

     Petitioners also argue that, at the least, they should be

able to recover wages petitioner lost on May 4, 2004, the day of

the Court hearing, a Monday on which petitioner would have worked

had it not been necessary to attend the hearing.   At the hearing,

petitioner acknowledged that he had paid vacation leave available

from his employer in order to attend the May 4, 2004, hearing,

but that he was not planning to take such paid leave.   The

evidence does not indicate whether petitioner ultimately took

paid leave, and we do not know whether petitioner actually lost

any wages to attend the May 4, 2004, hearing.   For lack of

substantiation and without deciding the legal issue as to whether

petitioner as a pro se litigant would have been entitled to

recover as litigation costs an amount reflecting lost wages, we
                                    - 8 -

do not award petitioners herein litigation costs with respect to

claimed lost wages.


Postage & Delivery Costs

     As indicated, respondent concedes that petitioners, under

section 7430, are entitled to recover a total of $35.06 in

postage costs.     Set forth in the schedule below for each mailing

and delivery are the total amounts petitioners claim they are

entitled to recover as postage and delivery costs under section

7430 and the specific amounts respondent concedes:

                                                         Petitioners Respondent
  Date              Postage & Delivery Costs                Claim      Concedes
06/21/03   Postage for original petition                    $ 4.65         --
                                                            1
08/26/03   Postage for amended petition                       117.70    $ 2.67
03/19/04   Postage for letter to IRS                              4.42    2.67
                                                              2
04/19/04   Federal Express motion to Court                      15.95    15.95
04/--/04   Federal Express letter to IRS                        13.77    13.77
                                                                3
04/--/04   Postage for unspecified mailing                        8.50     --
06/08/04   Postage for revised expense report to Court            9.60     --
                                                                4
09/28/04   Postage for reply brief to Court                       4.42     –-
               Total                                        $179.01     $35.06
           1
             This $117.70 reflects postage cost and the purported cost
     of office supplies. Petitioners do not separately identify the
     costs of postage and office supplies relating to this Aug. 26,
     2003, mailing.
           2
             This $15.95 was omitted from petitioners’ revised expense
     report, but such amount was included in the original expense
     report and was conceded by respondent. We include the cost of
     this Apr. 19, 2004, delivery as part of petitioners’ motion for
     litigation costs.
           3
             Petitioners claim that this $8.50 represents postage and
     office supplies relating to an alleged April 2004 mailing, but no
     evidence indicates that this mailing occurred.
           4
             This $4.42 relates to the certified mailing of
     petitioners’ reply brief, which was submitted after petitioners’
     revised expense report. We include the cost of this Sept. 28,
     2004, mailing as part of petitioners’ motion for litigation costs.


     With regard to the June 21, 2003, mailing to the Court, the

envelope in which petitioners mailed the original petition

verifies that petitioners incurred a cost of $4.65.
                               - 9 -

     With regard to the August 26, 2003, mailing to the Court,

respondent has conceded $2.67, but petitioners claim $117.70 for

postage and related office supplies.   The amended petition

consists of the same number of pages as the original petition,

and we conclude that petitioners likely incurred the same cost to

mail the amended petition as they incurred to mail the original

petition, or $4.65.   The record does not contain any

substantiation of additional office supplies purchased in

connection with this mailing, and we do not award petitioners any

amount with regard thereto.

     With regard to the March 19, 2004, mailing to respondent,

respondent has conceded $2.67, but petitioners claim $4.42.   The

March 19, 2004, letter is not contained in the record, but

respondent has conceded its existence, and in light of the

established cost of petitioners’ other mailings, we conclude that

petitioners incurred a cost of $4.42 to mail the March 19, 2004,

letter to respondent.

     With regard to the two April 2004 Federal Express deliveries

(one to respondent and one to the Court), respondent has conceded

the full amounts claimed by petitioners.

     With regard to an alleged April 2004 mailing, petitioners

claim $8.50 for postage and office supplies.   The record does not

contain any substantiation of this purported mailing.

     With regard to the June 8, 2004, mailing to the Court of the

five-page revised expense report, petitioners claim to have

incurred an estimated cost of $9.60.   The evidence indicates that
                                 - 10 -

the cost to mail the revised expense report likely was at least

as much as the cost to mail the original and amended petitions,

which each were three pages.      Petitioners have not substantiated

a higher amount for the cost of this mailing.           We conclude that

petitioners incurred a cost of $4.65 to mail the revised expense

report.

     The envelope in which petitioners’ reply brief was mailed to

the Court verifies that petitioners incurred a cost of $4.42 with

regard thereto.

     We award petitioners a total of $52.51 for postage and

delivery costs, which includes the $35.06 respondent already has

conceded, as summarized below:

       Date          Awarded Postage and Delivery Costs       Amount
     06/21/03   Postage for original petition to Court        $ 4.65
     08/26/03   Postage for amended petition to Court           4.65
     03/19/04   Postage for letter to IRS                       4.42
     04/--/04   Federal Express letter to IRS                  13.77
     04/19/04   Federal Express motion to Court                15.95
     06/08/04   Postage for revised expense report to Court     4.65
     09/28/04   Postage for reply brief to Court                4.42
                                    Total                     $52.51


Mileage & Parking

     The amounts petitioners claim they are entitled to recover

under section 7430 relating to mileage and parking costs are as

follows:



                      Date      Type of Cost   Amount
                    05/04/04   Mileage         $10.50
                    05/04/04   Parking           3.00
                                   Total       $13.50
                               - 11 -

     The parties are in significant disagreement, as a matter of

law, with regard to whether petitioners are entitled to recover

under section 7430 their out-of-pocket costs for mileage and

parking fees.   Petitioners argue that their out-of-pocket costs

qualify as general “litigation costs” under the language of

section 7430(c)(1).   Respondent argues that because petitioners’

out-of-pocket costs do not fall within any of the specific

categories of recoverable costs under section 7430(c)(1)(A)

through (B)(iii) such costs, as a matter of law, are not

recoverable.

     Set forth below is the relevant language of section 7430(c):


          SEC. 7430(c).   Definitions.--For purposes of this
     section--

               (1) Reasonable litigation costs. The term
          “reasonable litigation costs” includes--

                      (A) reasonable court costs, and

                     (B) based upon prevailing market rates for
                the kind or quality of services furnished--

                           (i) the reasonable expenses of expert
                      witnesses * * *,

                           (ii) the reasonable cost of any study,
                      analysis, engineering report, test, or
                      project * * *, and

                           (iii) reasonable fees paid or incurred
                      for the services of attorneys * * *.


     It is respondent’s position that mileage and parking costs

are not recoverable under section 7430(c)(1)(B)(iii) when they

were incurred by the taxpayer or by an attorney hired by the

taxpayer and included as part of the fees and costs reimbursed to
                              - 12 -

the attorney.   Respondent refers us to three memorandum opinions

of this Court that have held that mileage and parking costs

incurred by pro se taxpayers are not expenses which qualify as

recoverable litigation costs under section 7430(c)(1).     Petito v.

Commissioner, T.C. Memo. 2002-271 (mileage and parking fees

denied); Mason v. Commissioner, T.C. Memo. 1998-400 (mileage

denied); Buck v. Commissioner, T.C. Memo. 1993-16 (mileage and

parking fees denied).

     None of these memorandum opinions that deal with pro se

taxpayers, however, elaborates at any length on its rationale for

excluding out-of-pocket costs for mileage and parking fees from

the general definition of litigation costs under section

7430(c)(1), and memorandum opinions of this Court are not

regarded as binding precedent.   Nico v. Commissioner, 

, 654 (1977), revd. in part on other grounds 

(2d

Cir. 1977).

     We note that respondent’s argument (that petitioners are not

entitled to recover out-of-pocket costs such as mileage and

parking fees because they are not enumerated under section

7430(c)(1)(A) through (B)(iii)) is inconsistent with respondent’s

concession herein that petitioners are entitled to recover $35.06

in substantiated, out-of-pocket postage and delivery costs, which

also are not enumerated in section 7430(c)(1)(A) through

(B)(iii).

     We also note that Federal courts interpreting other

attorney’s fee award statutes generally have allowed pro se
                              - 13 -

litigants to recover out-of-pocket costs such as mileage and

parking fees.

     Under the general language of the attorney’s fee award

statute of the Freedom of Information Act (FOIA), 5 U.S.C. sec.

552(a)(4)(E) (2000),9 two Courts of Appeals and one District

Court have allowed pro se litigants to recover mileage and

parking fees.   Bensman v. United States Fish & Wildlife Servs.,

49 Fed. Appx. 646, 647 (7th Cir. 2002) (transportation costs and

parking fees awarded); Kuzma v. IRS, 

, 933 (2d Cir.

1987) (transportation costs, parking fees, and other out-of-

pocket costs awarded); Blazy v. Tenet, No. 93-2424, 1998 U.S.

Dist. LEXIS 22649, at *8-9 (D.D.C. Apr. 6, 1998) (mem.) (postage

and transportation costs generally awardable if substantiated).

     Under the attorney’s fee award statute of the Equal Access

to Justice Act (EAJA), 28 U.S.C. sec. 2412 (2000),10 the language

of which closely resembles the relevant language of section

7430(c)(1), at least two District Court opinions have awarded pro

     9
        The Freedom of Information Act, 5 U.S.C. sec.
552(a)(4)(E) (2000), provides:

     The court may assess against the United States reasonable
     attorney fees and other litigation costs reasonably incurred
     in any case under this section in which the complainant has
     substantially prevailed.
     10
        The relevant language of the Equal Access to Justice
Act, 28 U.S.C. sec. 2412(d)(2) (2000), provides:

     (2).  For the purposes of this subsection--
          (A) “fees and other expenses” includes the reasonable
     expenses of expert witnesses, the reasonable cost of any
     study, analysis, engineering report, test, or project which
     is found by the court to be necessary for the preparation of
     the party’s case, and reasonable attorney fees * * *.
                               - 14 -

se litigants mileage and parking fees.     Liberman v. Commr. of

Soc. Sec., 

, 20 (E.D.N.Y. 2002) (in addition to

items specifically listed in the statutory language, “courts

permit [pro se] litigants to recover telephone, postage, travel,

and photocopying costs under the EAJA”);     March v. Brown, 7 Vet.

App. 163, 170 (1994) (a pro se litigant may, if a prevailing

party, recover “all * * * ‘expenses [including postage and

transportation costs] ordinarily arising in the course of

providing legal services’ to a client”, quoting Cook v. Brown,

, 237-240 (1994)).   But see Kooritzky v. Herman,

, 13 (D.D.C. 1997) (awarded pro se litigant

photocopying costs but not taxi fares and postage), revd. on

other grounds 

(D.C. Cir. 1999).

     In cases under the attorney’s fee award provisions of EAJA,

as in this case involving section 7430, the Government has

resisted any award of various out-of-pocket costs even when the

costs were incurred by attorneys on behalf of their clients.

Most courts have rejected such a narrow reading of the statutory

provisions and generally have allowed such out-of-pocket costs to

be recovered.    In Intl. Woodworkers of Am., Local 3-98 v.
Donovan, 

, 767 (9th Cir. 1986), the Ninth Circuit

Court of Appeals, to which an appeal in this case would lie,

stated that the “expenses enumerated in [EAJA] are set forth as

examples, not as an exclusive list” and awarded postage, courier,

telephone, and attorney travel costs as “routine under all other

fee statutes”.   See also, e.g., Kelly v. Bowen, 

,
                             - 15 -

1335 (8th Cir. 1988) (items listed only “examples of expenses for

which compensation may be granted”); Oliveira v. United States,

, 744 (Fed. Cir. 1987) (court has authority to award

costs “customarily charged to the client”; trial court must “use

its discretion, in view of the record before it, to determine

whether a specific expense may be recovered”); Aston v. Secy. of

Health & Human Servs., 

, 12 (2d Cir. 1986) (“examples

of allowable expenses set out in [EAJA] are not exclusive”;

postage, transportation, telephone, and photocopying costs

reimbursable as reasonable fees and expenses); Hoopa Valley Tribe

v. Watt, 

, 947 (N.D. Cal. 1983) (EAJA defines

“other expenses” such as travel and telephone calls incurred by

plaintiff’s attorneys “by example, rather than by limitation” due

to the statute’s use of the word “includes”).

     The Tenth Circuit and the D.C. Circuit Courts of Appeals are

the only two Courts of Appeals of which we are aware that have

held that only costs specifically enumerated in the statute are

recoverable under EAJA even when the out-of-pocket costs are

incurred by a litigant’s attorney.    See, e.g., Weakley v. Bowen,

, 580 (10th Cir. 1986) (“Costs for travel expenses

and postage fees are not authorized”); Mass. Fair Share v. Law
Enforcement Assistance Admin., 

, 1069-1070 (D.C.

Cir. 1985) (photocopying costs recoverable, but no award for

postage and messenger services, taxi fares and other travel

costs, or telephone); Action on Smoking & Health v. Civil

Aeronautics Bd., 

, 224 (D.C. Cir. 1984) (photocopying
                              - 16 -

costs recoverable under EAJA, but no award for postage, taxi

fares, or other out-of-pocket costs), citing NAACP v. Donovan,

, 719 (D.D.C. 1982) (recoverable “costs” are

limited to those costs enumerated under 28 U.S.C. sec. 1920, and

EAJA’s provision for recovery of “fees and other expenses” was

not intended to include postage, transportation, meals, or other

related expenses).

     Under the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C.

sec. 1988 (2000), at least two Courts of Appeals, involving

litigants represented by attorneys, have awarded costs beyond

those specifically enumerated by the statutory language, and we

have found none that limits awardable costs to only those

specifically enumerated.   See Dowdell v. Apopka, 

,

1192 (11th Cir. 1983) (“with the exception of routine office

overhead normally absorbed by the practicing attorney, all

reasonable expenses incurred in case preparation, during the

course of litigation, or as an aspect of settlement of the case

may be taxed as costs under [42 U.S.C.] section 1988”, including

postage, travel, and telephone); Northcross v. Bd. of Educ., 

, 639 (6th Cir. 1979) (“reasonable out-of-pocket expenses

incurred by the attorney which are normally charged to a fee-

paying client in the course of providing legal services”, such as

travel and telephone costs, recoverable under 42 U.S.C. section

1988).

     In cases involving section 7430 and out-of-pocket costs

incurred by attorneys on behalf of their clients, the courts,
                             - 17 -

including this Court, uniformly allow an attorney’s fee award to

include various out-of-pocket costs.   See United States v. Sam

Ellis Stores, Inc., 

, 290 (S.D. Cal. 1991) (costs

for mileage awarded), affd. 

(9th Cir. 1992); Austin

v. Commissioner, T.C. Memo. 1997-157 (costs for mileage and

parking fees awarded); see also Powers v. Commissioner, 

, 493 n.13 (1993) (itemized mileage and parking costs deemed

conceded by respondent and awarded by the Court), affd. in part

and revd. in part on other grounds 

(5th Cir. 1995).

     We perceive no material distinction between substantiated

out-of-pocket costs recoverable by a taxpayer who is represented

by an attorney and substantiated out-of-pocket costs incurred by

a taxpayer who is not represented by an attorney.

     Also, with regard specifically to out-of-pocket costs

incurred by pro se taxpayers, we perceive no distinction between

those out-of-pocket costs conceded by respondent herein (such as

postage and delivery costs) and those out-of-pocket costs that

are disputed herein (such as mileage and parking fees).   Neither

type of out-of-pocket cost is specifically enumerated under

section 7430(c)(1), and both types of out-of-pocket costs would

appear to be recoverable only under a broad meaning of the word

“includes” as used in section 7430(c)(1).

     Further, it is helpful to consider how courts have

interpreted the specific word “includes” in the context of a

number of different statutory provisions.   Generally, the word

“includes” is interpreted by the courts as a word of enlargement,
                              - 18 -

not of limitation.   See, e.g., Fed. Land Bank v. Bismarck Lumber

Co., 

, 100 (1941) (the term “including” used in a

section of the Federal Farm Loan Act of July 17, 1916, ch. 245,

39 Stat. 380, is not one of all-embracing definition but connotes

simply an illustrative application of a general principle);

Chemehuevi Indian Tribe v. Cal. State Bd. of Equalization, 

, 1054 (9th Cir. 1985) (definitional term “includes”

used in a section of the California Revenue and Taxation Code

governing cigarette tax is one of enlargement, not of

limitation), revd. on other grounds 

(1985); Heffner v.

Ketchen, 

, 770 (Idaho 1931) (the word “including” used

in an Idaho tax lien statute is generally a term of enlargement,

may be used as a word of addition, and indicates something not

included, being sometimes used as equivalent to “also” or “and”).

     Of particular interest is the fact that the word “includes”

as used in the Internal Revenue Code (or its predecessors) has

been interpreted by the courts broadly.   See, e.g., Fid. Trust

Co. v. Commissioner, 

, 57 (3d Cir. 1944) (in view of

section 1111(b), a trust was considered a transferee although

section 526(f) of the Internal Revenue Code of 1932, ch. 209, 47

Stat. 257, defining transferee, did not enumerate trusts as part

of the definition of “transferee”); Cannon v. Nicholas, 

, 936 (10th Cir. 1935) (“the word ‘including’ * * * has

various shades of meaning, sometimes of restriction and sometimes

of enlargement” and as used in a predecessor of the Internal
                              - 19 -

Revenue Code was not intended to limit distraint of delinquent

taxpayer’s goods to those enumerated).

     Significantly, courts interpreting statutory language that

utilizes both the word “includes” and the word “means” in

different parts of the same statutory provision have held that

those two words, in the context of such a juxtaposition, have

different interpretations.

     Interpreting section 206 of the Revenue Act of 1926, ch. 27,

44 Stat. 17, the Supreme Court, in Helvering v. Morgan’s Inc.,

(1934), concluded that “includes” and “means” are to

be interpreted differently when both are used in the same

statutory provision.   The Supreme Court interpreted the word

“includes” to indicate that what follows contains general

examples (i.e., not an exclusive list) and interpreted the word

“means” to indicate that what follows contains the complete

definition (i.e., an exclusive list).


     The natural distinction would be that where “means” is
     employed, the term [“means”] and * * * [the language
     that follows] are to be interchangeable equivalents,
     and that the verb “includes” imports a general class,
     some of whose particular instances are those specified
     in the * * * [language that follows the term
     “includes”]. [Id. at 125, n.1.]

     We note that the operative and relevant word used in section

7430(c)(1), relating to litigation costs, is “includes”, while
                               - 20 -

the operative word used in section 7430(c)(2), relating to

administrative costs, is “means”.11

     In the context of other nontax Federal statutes, when both

words “includes” and “means” are used within the same statutory

provision, courts have held that the word “includes” is a term of

enlargement and extension and that the word “means” is a term of

enumeration and limitation.   Am. Sur. Co. v. Marotta, 

, 517 (1933) (relating to Federal bankruptcy statute); Highway

& City Freight Drivers, Dockmen & Helpers, Local Union No. 600 v.

Gordon Transports, Inc., 

, 1289 (8th Cir. 1978)

(relating to Federal bankruptcy statute); Exxon Corp. v. Lujan,

, 1545 (D. Wyo. 1990) (relating to Department of

Interior Federal regulatory language), affd. 

(10th

Cir. 1992); Brown v. Scott Paper Worldwide Co., 

, 926

(Wash. 2001) (relating to State employment statute).12

     11
          The relevant portion of section 7430(c)(2) provides:

     SEC. 7430(c)(2) Reasonable administrative costs.    The term
     “reasonable administrative costs” means--

          (A) any administrative fees or similar charges imposed
     by the Internal Revenue Service, and

          (B) expenses, costs, and fees described in [sec.
     7430(c)] paragraph (1)(B) * * *.
     12
        We acknowledge that, in certain contexts, the words
“includes” and “including” have been interpreted as words of
limitation and confinement. See, e.g., Blankenship v. W. Union
Tel. Co., 

, 169 (4th Cir. 1947) (“includes” as used
in the Fair Labor Standards Act provision that the word
“employee” includes any individual employed by employer is “a
term of limitation indicating what belongs to a genus, rather
than a term of enlargement”), citing Montello Salt Co. v. Utah,

(1911); Television Transmission, Inc. v. Pub. Utils.
                                                   (continued...)
                              - 21 -

     We believe that the out-of-pocket costs for mileage and

parking fees incurred by petitioner in order to attend the Court

hearing herein are covered by the term “litigation costs” under

the language of section 7430(c)(1) that applies to Tax Court

litigation.   Section 7430(c)(1), defining reasonable litigation

costs, does not contain an exclusive list of items recoverable as

litigation costs, especially in light of the paragraph’s use of

the word “includes”, as opposed to the word “means”.

     We summarize our analysis as follows:   A majority of courts

interpreting other Federal attorney’s fee award statutes allow

substantiated out-of-pocket costs for postage and delivery and

for mileage and parking fees when incurred by pro se litigants;

section 7430 uses the expansive, nonexclusive word “includes”, as

opposed to “means”, when defining “litigation costs”; and

respondent herein concedes postage and delivery costs to be

recoverable litigation costs under section 7430(c)(1) even when

incurred by pro se taxpayers.13

     12
      (...continued)
Commn., 

, 863 (Cal. 1956) (“Although ‘includes’ is
ordinarily not a word of limitation, a legislative declaration
that ‘public utility’ includes those performing certain
enumerated services is not a declaration that those performing
other services, not encompassed by the services enumerated, are
public utilities” subject to control and regulation by the Public
Utilities Commission [citations omitted]).
     13
        We note that there are no Treasury regulations
promulgated specifically under sec. 7430(c)(1) (relating to
litigation costs). There are Treasury regulations promulgated
under sec. 7430(c)(2) (relating to administrative costs), and
they provide (see sec. 301.7430-4(b)(1), Proced. & Admin. Regs.)
an enumeration comparable to the specific enumeration of the
statutory language of sec. 7430(c)(2). After such enumeration,
                                                   (continued...)
                             - 22 -

     Petitioners are awarded an additional $11.25 for mileage and

$3 for parking to attend the May 4, 2004, hearing.


Conclusion
     In summary, based on respondent’s concessions and our

conclusions, petitioners are awarded litigation costs for the

Court filing fee, various postage and delivery charges, mileage


     13
      (...continued)
however, those regulations relating specifically to
administrative costs also expressly provide that additional out-
of-pocket costs, when billed separately by a litigant’s attorney,
may be recoverable as administrative costs, as follows:

          necessary costs incurred for travel; expedited mail
          delivery; messenger service; expenses while on travel;
          long distance telephone calls; and necessary copying
          fees imposed by the Internal Revenue Service, any
          court, bank or other third party * * * may be
          reasonable administrative costs. [Sec. 301.7430-
          4(c)(2), Proced. & Admin. Regs.]

     Another noteworthy point is that the regulations promulgated
under sec. 7430(c)(2) (relating to administrative costs) contain
a subparagraph which make reference to litigation costs as
follows:

          Litigation costs include--

               (i) Costs incurred in connection with the
          preparation and filing of a petition with the United
          States Tax Court or in connection with the commencement
          of any other court proceeding; and

               (ii) Costs incurred after the filing of a petition
          with the United States Tax Court or after the
          commencement of any other court proceeding. [Sec.
          301.7430-4(c)(3), Proced. & Admin. Regs.]

As will be noted, the above language in subdiv. (ii) of the
regulation provides no list or enumeration comparable to the list
set forth in the statutory language of sec. 7430(c)(1)(A) through
(B)(iii), and it broadly and simply refers, without any
limitation, to “litigation costs” as those “costs” incurred
relating to the handling of a case.
                              - 23 -

costs,14 and parking fees relating to this litigation as outlined

below:


                Awarded Litigation Costs    Amount
               Court filing fee            $ 60.00
               Postage and delivery          52.51
               Mileage                       11.25
               Parking                        3.00
                   Total                   $126.76


     Other arguments made by petitioners, such as a claim for

punitive damages, are without merit and are rejected.

     For the reasons stated, we shall award petitioners

litigation costs in the amount of $126.76.15


                                   An appropriate order and

                              decision will be entered.




     14
        As indicated, petitioners calculated their mileage costs
at $0.35 per mile when the Government’s actual allowable mileage
reimbursement rate effective on May 4, 2004, was $0.375. 68 Fed.
Reg. 69618 (Dec. 15, 2003). Therefore, at the applicable rate,
which we use, 30 miles traveled results in $11.25 in mileage
costs.
     15
        The amounts at issue and the amounts awarded herein are
small. Issuance of this Opinion, however, is appropriate due to
the repetitive nature of the costs involved and due to the need
to clarify for pro se taxpayers (as well as for represented
taxpayers) the available recovery under sec. 7430 of out-of-
pocket costs such as postage, mileage, and parking fees.