The court will address the two pending motions for summary judgment seriatim.
A. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The defendant contends that the United States is entitled to summary judgment as a matter of law on two main issues. First, defendant contends that summary judgment should be granted on the issue of plaintiff's liability under section 6672 because plaintiff was already given his refund rendering the said issue moot. Second, it is also contended that defendant is entitled summary judgment as a matter of law on the issue of costs and attorney's fees because the plaintiff has failed to demonstrate that he is a "prevailing party" under 26 U.S.C. § 7430.
"In general[,] a case becomes moot 'when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.'" Murphy v. Hunt, 455 U.S. 478, 481, 102 S. Ct. 1181, 1183, 71 L. Ed. 2d 353 (1982) (quoting United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 100 S. Ct. 1202, 1208, 63 L. Ed. 2d 479 (1980)). The requirement that a case be "live" applies to every stage of a court's proceedings. R.C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102, 105 (2d Cir. 1989). If a case is moot, then the court is without jurisdiction to address the merits of the litigation. Id. (citing Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1951, 23 L. Ed. 2d 491 (1969)).
Defendant argues that if the court was to render a determination on the issue of liability under section 6672, the court would be rendering a meaningless decision since the decision would fail to have any impact on the parties in question. This is because plaintiff had already obtained the relief he had sought in this litigation. The defendant therefore contends that the issue of plaintiff's liability under section 6672 is moot. Plaintiff, on the other hand, alleges that the issue of liability under section 6672 is not moot because determination of the issue is required for the court to decide whether costs and attorney's fees will be awarded to plaintiff under 26 U.S.C. § 7430.
At this stage of the proceedings, it is the court's determination that there remains no substantive relief to be awarded to the plaintiff. Plaintiff has admitted that a full tax refund was already had by him. Consequently, since the relief plaintiff sought under the claim has already been obtained, there remains no ground for this court to decide on the issue of plaintiff's liability arising under section 6672. Simply stated, there is no longer a "live" controversy for this court to address. See Unilever N.V., 867 F.2d at 105. Plaintiff's substantive claim under section 6672 is thus moot, and the defendant's motion for summary judgment is granted specifically on the issue of liability under section 6672.
It must be reminded that plaintiff's real interest in opposing defendant's motion for summary judgment is merely to preserve his status as a "prevailing party" for the purpose of obtaining costs and attorney's fees pursuant to 26 U.S.C. § 7430. Thus, it should be made clear at this juncture that the granting of summary judgment on the issue of liability under section 6672 does not affect or foreclose plaintiff's right to get costs and attorney's fees under section 7430. See Maher v. Gagne, 448 U.S. 122, 129, 100 S. Ct. 2570, 2574, 65 L. Ed. 2d 653 (1980); Operating Engineers Local Union No. 3 of International Union of Operating Engineers v. Bohn, 737 F.2d 860, 863 (10th Cir. 1984).
This is because different standards and burdens apply when one is being assessed under section 6672 as opposed to when one is seeking costs under section 7430. Cf. Bohn, 737 F.2d at 863. Since the court has found the issue of liability under section 6672 moot, the court will now turn to the issue of costs and attorney's fees under section 7430.
2. 26 U.S.C. § 7430 - "COSTS AND CERTAIN FEES"
The plaintiff has based his claim for costs and attorney's fees under 26 U.S.C. § 7430. Section 7430(a) declares that,
In general. - In any administrative or court proceeding which is brought by or against the United States in connection with the determination, collection, or refund of any tax, interest, or penalty under this title, the prevailing party may be awarded a judgment or a settlement for -
(1) reasonable administrative costs incurred in connection with such administrative proceeding within the Internal Revenue Service, and