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August 5, 2014
Who Pays Your Lawyer? A Scorecard of SALT Attorney Fee Provisions
by Stephen P. Kranz, Diann L. Smith, and Eric Carstens

Full Text Published by Tax Analysts®

This document originially appeared in the July 23, 2014 edition of State Tax today.

Stephen P. Kranz, Diann L. Smith, and Eric CarstensStephen P. Kranz is a partner, Diann L. Smith is counsel, and Eric Carstens is a law clerk with McDermott Will & Emery. Kranz was previously general counsel for the Council On State Taxation and president of the Business Advisory Council of the Streamlined Sales Tax Governing Board. He also writes State Tax Policy Exchange, a regular State Tax Notes column.

In this report, the authors analyze the statutes, administrative rules, and court procedures governing the ability of taxpayers to recover attorney fees in tax litigation in the 50 states and the District of Columbia.


* * * * *

I. Executive Summary

This scorecard seeks to objectively evaluate state statutes, administrative rules, and court procedures that govern a taxpayer's ability to recover attorney fees in a state tax dispute. The analysis does not address the propensity or norm of fee awards by state courts or administrative agencies. Therefore, this scorecard should not be used as a gauge of recoverability in litigation without considering the applicability of the specific facts and circumstances of a particular case.

The more avenues available to taxpayers for recovering attorney fees, the higher the score a state received. Legislatures should view fee shifting in taxpayer disputes as a necessary check on state revenue department taxing authority -- allowing for meaningful scrutiny of tax administration by all and not just parties that can afford to pay for the best state tax attorneys. The often significant costs of navigating the administrative and judicial processes in a state tax challenge lead to vastly uneven bargaining power between the parties and may force them to settle under terms not justified by the substantive issues. Settlement is desirable, but not when the bargaining power is so uneven that most taxpayers have no other viable option. This dilemma can be minimized by allowing fee shifting for taxpayers who prevail against a state revenue department. That would encourage taxpayers with a strong case to stick it out and not concede because of litigation costs alone.

The factors used to evaluate attorney fees in state tax litigation include:

  • whether attorney fees are available (points given equally for judicial and administrative availability). Additional points were given to states that allowed fee shifting to a broad class of taxpayers, judicially, administratively, or both;
  • whether attorney fees are capped and, if so, at what amount;
  • the standard of proof and presumptions used when permitting an attorney fee award;
  • whether court costs (aside from attorney fees) are awardable to prevailing parties; and
  • whether common law theories (such as the common fund doctrine) have been adopted or rejected by the state courts, permitting taxpayers to recover attorney fees.

A detailed explanation of the scoring can be found in Section XI.

II. Highest and Lowest Scoring States

Using these criteria, the states receiving the highest scores were Oregon, North Carolina, Alaska, Florida, Illinois, and New Hampshire. States receiving F's on the scorecard were Virginia, the District of Columbia, Connecticut, Louisiana, Maine, Vermont, and Wyoming.

III. Summary of Results

The table ranks the statutes, court rules, regulations, administrative procedures, and case law regarding the awarding of taxpayer attorney fees. States vary widely on this, and it is in the interest of all taxpayers to be aware of these differences. The research used to compile the scores is provided in its entirety in the attorney fee matrix, available in Appendix II.

                               Summary of Results
 ______________________________________________________________________________

                                                           Section
                                                   Common  1983/
 State           Statutes  Caps  Standard   Costs  Fund    1988    Total  Grade
 ______________________________________________________________________________

 Alabama            2        2       3         1      1      -1       8     C

 Alaska             6        3       4         1      0       0      14     A

 Arizona            6        2     3.5         1      1      -1    12.5     B

 Arkansas           2        0       2         1     -1       0       4     D

 California         6        3       3         1      1      -1      13     B

 Colorado           3        3       3         1      1      -1      10     C

 Connecticut        0        0       0         0      0      -1      -1     F

 District of
 Columbia          -2        0       0         0      1      -1      -2     F

 Delaware           0        0       0         1      1       0       2     F

 Florida            6        4       2         1      1       0      14     A

 Georgia            2        2       2         0      1      -1       6     D

 Hawaii             2        2       2         1      0       0       7     D

 Idaho              2        2       2         1      0       0       7     D

 Illinois           5        4       3         1      1       0      14     A

 Indiana            4        2       2         1      0       0       9     C

 Iowa               6        2       3         1     -1       0      11     B

 Kansas             6        4       2         1      0       0      13     B

 Kentucky           3        2       3         1      1      -1       9     C

 Louisiana         -2        0       0         1      1      -1      -1     F

 Maine              0        0       0         1      0      -1       0     F

 Maryland           4        0       2         1      1       0       8     C

 Massachusetts      2        2       2         1      1      -1       7     D

 Michigan           4        4       2         1      0      -1      10     C

 Minnesota          4        4       1         1      0       0      10     C

 Mississippi        2        2       2         1      0      -1       6     D

 Missouri           6        2       3         1     -1       0      11     B

 Montana            3        3       2         1      0       0       9     C

 Nebraska           3        0       3         1     -1      -1       5     D

 Nevada             3        3       2         1      0       0       9     C

 New Hampshire      6        4       3         1      0       0      14     A

 New Jersey         4        2       4         1      0      -1      10     C

 New Mexico         6        3     3.5         1      0      -1    12.5     B

 New York           5        4       3         1      0      -1      12     B

 North Carolina     6        4     2.5         0      1       1    14.5     A

 North Dakota       5        4     2.5         1     -1       0    11.5     B

 Ohio               3        3     1.5         1      1      -1     8.5     C

 Oklahoma           3        3       3         1     -1      -1       8     C

 Oregon             6        4       3         1      1       0      15     A

 Pennsylvania       3        3       2         1      1      -1       9     C

 Rhode Island       5        2       3         1      0       0      11     B

 South Carolina     5        4       3         1      0       0      13     B

 South Dakota       5        4       3         1      0       0      13     B

 Tennessee          6        3       4         1      0      -1      13     B

 Texas              2        2       1         0      1      -1       5     D

 Utah               3        2       3         1      0       0       9     C

 Vermont            0        0       0         1      0      -1       0     F

 Virginia          -2        0       0         0      0      -1      -3     F

 Washington         2        2       3         1      1       1      10     C

 West Virginia      2        2       2         1      0       0       7     D

 Wisconsin          2        1       3         1      0       0       7     D

 Wyoming            0        0       0         0      0       0       0     F

IV. Background on Attorney Fees

The U.S. rule, the starting point for any attorney fee analysis, provides that each party is responsible for paying its own attorney fees, unless specific authority granted by statute or contract allows the assessment of those fees against the other party. Some state statutes specifically authorize the recovery of attorney fees in state tax actions. Many of those statutes are part of the more comprehensive taxpayer bill of rights. Other states do not have statutes specifically designed for state tax controversies but may instead have broader statutes that award attorney fees in any administrative controversy. Those broader Administrative Procedure Act (APA) provisions may apply to taxpayers who prevail in an administrative or court challenge to a state tax. One of the more common statutory means for taxpayers to receive attorney fees is via state equal access to justice acts -- most of which directly (or very closely) resemble the federal Equal Access to Justice Act (EAJA) established under 28 U.S.C. section 2412(d)(1). Those statutes allow attorney fees for the most vulnerable taxpayers, such as nonprofits, small businesses, and low-income individuals.

The scorecard also considers state common law means of awarding fees. One avenue is for a state to allow 42 U.S.C. section 1988 attorney fees arising from section 1983 claims under federal law in state court. After National Private Truck Council,1 the availability of section 1983 claims in state court varies greatly from state to state, based on common law interpretations of whether an adequate state remedy exists -- one of the main limitations for a section 1983 claim. Thus, in a minority of states, taxpayers can argue that the absence of fee provisions under state law constitutes a failure to provide taxpayers with full and adequate relief when challenging unconstitutional state taxes.2 Taxpayers can also argue that access to state remedies does not limit the remedies available under federal law, and the federal remedy is supplementary to any state remedy under the terms of section 1983.3

Even though a taxpayer may have a valid and substantial federal claim, National Private Truck Council forecloses access to any forum for resolution. That interpretation arguably denies taxpayers basic rights to procedural due process. The North Carolina Supreme Court held that a taxpayer could pursue section 1983 remedies, in addition to the state law remedies, for substantive violations, for example, of the equal protection clause. The court explained that exhaustion of state remedies is relevant only when a section 1983 action is brought for an alleged violation of procedural due process.4 Notably, that case, Edward Valves, was denied certiorari by the U.S. Supreme Court, arguably giving it some weight on a national level.5 Even when an adequate state remedy exists, an exception carved out by the Supreme Court in a footnote to National Private Truck Council allows state courts to exercise their equity jurisdiction in the rare case when "the enforcement of the tax would lead to a multiplicity of law suits, or produce irreparable injury."6 The Court specified, though, that "the multiplicity-of-suits rationale for permitting equitable relief extends only to those situations when there is a real risk of numerous suits between the same parties, involving the same issues of law and fact."7

Another common law means to recover attorney fees in state court is through the common fund doctrine. That doctrine has a rich history dating back well into the 19th century.8 The theory behind the doctrine is that nonparties benefiting from a class action should not be unjustly enriched by the services of the attorney representing the class.9 Jurisdiction over the litigation fund allows a court to prevent that inequity by assessing attorney fees against the entire fund, thus spreading fees proportionately among those benefited by the suit.10 The equitable doctrine has developed with numerous caveats and exceptions that limit its widespread application. For example, the Supreme Court noted that the common fund doctrine has been appropriately applied in cases (1) when the classes of persons benefiting from the lawsuit were small and easily identifiable, (2) when the benefits could be traced accurately, and (3) when the costs could be shifted to those benefiting with some precision.11 Also, some states have created technical requirements, including requiring the segregation of funds from other funds in the department's control, mandating the funds to be in the control of the court, and even limiting the applicability to awards from settlements or recoveries mandated by court order.12


V. Attorney Fees as a Check on State Revenue Departments

Without the ability to sue for reimbursement of attorney fees, taxpayers are at a disadvantage because state revenue departments can take unfounded positions without penalty other than having a court eventually reject their position. Generally, a state court's power to grant attorney fees is derived from common law or statute (often similar to IRC section 7430). Notably, the American Bar Association's Model State Administrative Tax Tribunal Act, which has been adopted by many states, does not include provisions allowing litigants to recover attorney fees.

Ultimately, restricting attorney fees in state tax actions may discourage taxpayers from pursuing meritorious appeals when small assessments are at stake, leading to regressive outcomes. Even when tax dollars are high, taxpayers may be unwilling to incur the vast expense of pursuing an appeal through the state administrative, trial, and appellate processes if no legal precedent has been established. Thus, recovery of attorney fees helps counterbalance the institutional bias built into many state tax processes that requires taxpayers to exhaust their administrative remedies via a nonindependent tax forum run by the revenue department.

The unavailability of fee awards removes a major incentive for taxpayers to take the costly litigation gamble necessary to challenge an unconstitutional state tax. Important state tax litigation is often over nominal amounts, and allowing the prevailing party to recover fees and costs is one way to encourage a suit when a wrong has been committed by the revenue department. The threat of taxpayer challenges remains the most significant check on the unfettered state power to impose taxes, and it limits the state tax authority from overreaching and taking risky positions at no expense to them. States have little to lose by enacting and enforcing taxes of questionable constitutionality -- and may even be encouraged to test the waters -- when there is no penalty for doing so.

State tax controversies are expensive and often procedurally difficult. The cost of going through the refund process after contesting the assessment at the administrative level can easily break the budget of a taxpayer that thinks it has been wronged. State revenue departments know this and use it to their advantage -- wearing down taxpayers and discouraging them from moving forward because of financial limitations. While limiting frivolous challenges is good for the state, judicial economy can become an unreasonable burden on taxpayers, especially less wealthy ones, when non-frivolous challenges are also limited by the policy. Disallowing attorney fees does just that. Even the wealthiest of taxpayers are unlikely to bring justified challenges over nominal amounts because of the cost benefit ratio created by the revenue department. Saving the state money must be balanced with taxpayer rights so that reasonable challenges can be made economically and efficiently.

There are numerous reasons for states to allow the recovery of attorney fees in taxpayer challenges. Challenging government action frequently results in benefits to other similarly situated taxpayers and the general public. Relieving the named plaintiff of the entire burden of attorney fees in a successful challenge is one way to reward the time and effort spent rectifying the wrongdoing. Taxpayer suits often result when the government refuses to rectify a problem. This should not result in additional costs to the taxpayer.

States that don't allow attorney fees are the most problematic. With no attorney fees, taxpayers are forced to settle and pay more taxes than they actually owe to avoid the even higher cost of litigation. By contrast, the resources available to state tax authorities far exceed those of any one taxpayer -- ensuring they do not have to settle. The resulting uneven bargaining power gives the state a clear upper hand and leads to "take it or leave it" settlement offers. Public confidence in state tax regimes can be undermined by this inequality. In a tax system, when voluntary compliance is the fine thread holding the fabric together, state agencies should do everything in their power to create taxpayer confidence and avoid using litigation inequality to their advantage. The winner should not be penalized when the validity of a claim or defense has been proven. Its being made whole is the most appealing justification for the loser-pays rule.13 Taxpayers should not be prohibited from bringing claims when harm has been done to them by a state tax authority.

States concerned about opening the floodgates to challenges and potentially losing a significant amount of revenue should consider the reality that attorney fees often cut both ways. Many states allow the defendant-state tax authority to recover attorney fees when a plaintiff-taxpayer brings a case lacking merit. Other states allow attorney fees to the prevailing party -- state or taxpayer. Some states allow the state to recover attorney fees in cases in which it retains outside counsel. Others allow private taxpayers to act for the state and receive attorney fees via the private attorney general doctrine.


VI. Limitations on Attorney Fees

Almost all states that allow attorney fees in state tax controversies limit their availability in one way or another. The most straightforward limit is a cap on the amount or hourly rate used to calculate an attorney fee award. States that impose a cap usually provide an exception for plaintiffs that can demonstrate the existence of a special factor such as an especially high degree of expertise, although the determination is at the discretion of the court. Some states impose caps and fee limits that are tied to a specific cause of action. That is generally good for taxpayers, as arbitrary blanket limitations on attorney fees will likely lead to both over- and underinclusive outcomes based on the breadth of state tax actions. Another interesting limitation used in several states is to base recovery on a percentage of the judgment. However, this has the potential to be extremely under-representative of the legal services provided in tax disputes over relatively nominal amounts of money.

Another method of limiting attorney fee awards is to narrowly define the standard. For example, many states permit an award of attorney fees against the state only when the state or revenue department makes a claim or otherwise acts in a frivolous, intentional, or reckless manner. Many taxpayers bring clearly meritorious actions against the state in which its actions do not reach the heightened threshold of reckless, prohibiting the taxpayer from recovering attorney fees. Also, many states have narrowed the award of attorney fees even more to individual causes of action, such as actions under the state EAJA. This restriction leaves many medium to large corporate taxpayers and upper-middle-income individuals out to dry in state tax actions. Another popular state standard is to award attorney fees to the prevailing party; however, in most cases, the taxpayer (or state) must show that the state action was not substantially justified. Ultimately, the most taxpayer-friendly standard is to unconditionally award fees to prevailing parties in actions against the state.


VII. Court Costs

Many states also allow prevailing parties to recover court costs against the state tax authority when a taxpayer prevails. In many states, court costs specifically do not include attorney fees and are a completely distinct matter. Others group attorney fees in the general classification of costs. Some examples of costs outside attorney fees include witness fees, filing charges, transcript fees, subpoena and deposition fees, and other miscellaneous fees charged by the court or the state administrative agency.

VIII. States of Note: Highest Scores

Oregon explicitly gives state courts discretion to award attorney fees to taxpayers after a successful refund action. Also, the tax court rules permit awards of attorney fees and costs, but cases before that court have limited fees in appeals when there is no factual dispute and the taxpayer loses on the legal issue. An additional statute requires any court to award reasonable attorney fees to a party when the opposing party pursues a claim, defense, or appeal that lacks an objectively reasonable basis. Non-fee court costs are also widely available at the discretion of the court under state civil procedure rules. While Oregon has not specifically applied the common fund doctrine, its courts are open to equitable attorney fees for prevailing parties that vindicate an important constitutional right, so long as no pecuniary or other special interest exists aside from that shared with the public at large.

North Carolina achieved the second highest score by allowing uncapped attorney fees at both the administrative and judicial levels. Despite the lack of a cap or venue requirement, the standard imposed on awards is stricter than in other high-scoring states, requiring the taxpayer to show the agency lacked substantial justification or the complete absence of justiciable issues of fact or law. The state compensates for that stringent standard by allowing fee awards to taxpayers under the common fund doctrine and awarding section 1983 fees, in addition to state remedies under Edward Valves. Despite achieving the second highest score, North Carolina did not readily allow other costs to be awarded to prevailing parties.

Alaska was tied for third with four other states despite not allowing fees via common law. Instead, Alaska's statutes allow both administrative and judicial fees to a broad class of taxpayers (any successful taxpayer, subject only to a reasonableness standard). For general civil litigation, fees are capped based on a statutory fee schedule tied to a percentage of the total award. However, the state statute allowing refund claims limits attorney fees to the amount actually paid. Several other court costs are awardable to prevailing parties as well.

Florida allows attorney fees by statute in both administrative and judicial venues with broad applicability. However, as in North Carolina, the standard used to award fees is strict. Nonetheless, fees are available to prevailing parties when an action is brought without justiciable issues of fact or law, or the DOR improperly rejects or modifies a conclusion of law. Other court costs are readily available to prevailing taxpayers, and the common fund doctrine has been applied to class action litigation against the department.

Illinois statutorily allows for attorney fees judicially and under the state APA. However, the newly created independent tax tribunal explicitly disallows fees in its rules of procedure. When fees are allowed, they are not capped, and the standard for awarding them to a prevailing taxpayer is when the department has made an assessment or denied a claim without reasonable cause. Also, many other court costs are awardable to prevailing taxpayers by statute, and several state cases have permitted fee awards via the common fund doctrine as well.

New Hampshire permits the awarding of attorney fees to prevailing taxpayers before the board of tax and land appeals or any state court. The taxpayer has the burden of proving that the DOR's position was substantially unjustified. Superior court rules (adopted by the board) also permit taxpayers to recover fees and costs against a party whose frivolous or unreasonable conduct makes necessary the filing of or a hearing on any motion. While case law in the state has applied the substantial benefit doctrine to nontax actions, doctrines have not been specifically applied to award fees in taxpayer disputes.


IX. States of Note: Lowest Scores

Virginia achieved the lowest score in the nation by statutorily preventing costs and attorney fees from being awarded against the state, while permitting the state and local governments to recover fees against taxpayers. The combination of those lopsided provisions, paired with case law denying section 1983 claims because of adequate state court remedies, leaves Virginia with significant room for improvement.

The District of Columbia finished second to last, scoring one point higher than Virginia based on its allowance of fees under the common fund doctrine in a D.C. Court of Appeals case from nearly four decades ago. Notably, the District was silent on the allowance of fees to taxpayers in tax disputes before the superior court and the office of administrative hearings. Despite disallowing fees to taxpayers, the D.C. Code statutorily permits the mayor to contract with collection agencies to collect delinquent taxes at the expense of the taxpayer. This includes reasonable attorney or agent fees and a collection fee not in excess of 25 percent of the total amount of the delinquent taxes, including penalties and interest that are actually collected. Even when the mayor does not contract with a collection agency, the 25 percent collection fee may still be charged by the District. Despite readily allowing costs and fees against delinquent taxpayers, the District does not allow successful taxpayers to recover costs.

Connecticut is tied for third worst based on the inability of taxpayers to collect costs and fees in all state venues. Further, the highest state court denied jurisdiction to the trial court for section 1983 claims after the National Private Truck Council decision, when the plaintiff had an opportunity to receive both legal and equitable relief, which was determined to be an adequate remedy.

Louisiana also statutorily prevents taxpayers from receiving attorney fees from the government, while allowing both state and local governments to appoint outside counsel that may recover fees of up to 10 percent of taxes, penalties, and interest due. While technically the prevailing party, not just outside counsel, may receive attorney fees in local sales tax disputes, the local collector may waive its right to fees and prevent fee recovery across the board. As a practical matter, that severely limits the likelihood that taxpayers will recover fees. The statute for state imposition of outside counsel fees merely allows for the same 10 percent fee recovery, whether incurred in a collection case or in defense of a taxpayer's suit for a refund. Louisiana slightly edged out Virginia and the District by allowing taxpayers to recover attorney fees under the equitable common fund doctrine and to recover some other non-fee litigation costs.


X. Other States of Note

California narrowly missed the cut to join the top-ranked states because of common law differences. Statutorily, California taxpayers have several avenues to receive attorney fees in both judicial and administrative venues. Like many other states, California places a statutory limit on the hourly rate used to calculate attorney fees (Revenue & Taxation Code sections 19717 and 7156), but it often allows for fees above and beyond modest amounts if they can be justified by a special factor, such as limited availability of qualified counsel. Earlier this year, a California court awarded taxpayer counsel a $2.6 million fee award ($500 per hour), despite the $75-per-hour statutory limit, based on the unique qualifications of the attorneys, their extensive experience with the statutes at issue, and their service as attorneys in the recent precedent-setting case. The California Code of Civil Procedure states that a prevailing party is entitled as a matter of right to recover costs in any action or in any proceeding, unless provided otherwise by statute. It also specifically allows a court to award attorney fees to a successful party against one or more opposing parties in any action that has resulted in the enforcement of an important right affecting the public interest. California courts have also awarded fees on a purely common law basis in tax cases through the common fund doctrine. One area in which California lost points was the denial of section 1983 fee claims post-National Private Truck Council.

New York finished only slightly below California because of the lack of availability of fee awards in some venues and the limited applicability in others. For example, New York does not allow for attorney fees for successful taxpayers before the court of claims and the tax appeals tribunal. In all other venues, New York allows attorney fees to the prevailing party in an administrative or judicial proceeding involving the determination, collection, or refund of any tax when the commissioner is a party. The wrinkle is that New York defines prevailing party to include only individual taxpayers with a net worth of $2 million or less when the civil action was filed or an owner of a business entity with 500 or fewer employees and a net worth of $7 million or less. One exception to those rules is nonprofit organizations, which do not have to abide by those limits and can receive fee awards for any successful tax challenge when the commissioner is a party, regardless of their size or net worth.

Like California, New York places a cap of $75 per hour on any fee award as a starting point, but it allows for the prevailing party to overcome that nominal amount by showing the existence of special factors. One area in which New York is statutorily more generous than other states is class actions. By statute, if a judgment in an action maintained as a class action is rendered in favor of the class, the court in its discretion may award attorney fees to the representatives of the class and to any other person that the court finds has acted to benefit the class based on the reasonable value of legal services rendered, and if justice requires, may allow recovery of the amount awarded from the opponent of the class.

Texas finished near the bottom of the list because of the extremely limited availability of attorney fees (discretionary fees permitted to prevailing parties only under the excessive property tax appraisal provisions). Despite the limited applicability, Texas permitted fee awards under that provision in both administrative and judicial venues. Texas lost points because of a provision allowing any tax unit to recover reasonable attorney fees in suits to collect delinquent taxes. The provision grants an award of 15 percent of the total amount of taxes, penalties, and interest. Finally, a Texas tax statute specifically limits the availability of declaratory judgments against the state or a state agency, preventing attorney fees under the Texas Uniform Declaratory Judgments Act for state tax disputes involving the applicability, assessment, collection, amount due, or constitutionality of a tax or fee.

Pennsylvania finished near the middle of the pack with its main shortfall being the absence of attorney fee awards before the board of finance and revenue. Before the unified judicial system, fees are statutorily available to a party when the other participant has committed dilatory, obdurate, or vexatious conduct during the pendency of a matter, or acted arbitrarily, vexatiously, or in bad faith in commencing the matter. The same standard applies to state appellate courts, allowing awards of reasonable attorney fees if an appeal is deemed frivolous or taken solely for delay, or the conduct of the litigant is dilatory, obdurate, or vexatious. Absent bad-faith-like acts before a Pennsylvania court, attorney fees are likely limited for most taxpayers. Costs are generally recoverable against the unsuccessful litigant, except when they should be borne by the fund, the applicable law is uncertain, and the purpose of the litigants is primarily to clarify the law, or the provision of costs would work a substantial injustice.

Ohio finished near the middle of the pack with a series of typical fee-granting provisions that are limited in both nature and scope. First, Ohio limits the availability of fees before the board of tax appeals unless there is evidence of the non-prevailing party being disobedient to the procedural rules governing the administrative tax court. Ohio statutorily allows for judicial fee awards, but only in some scenarios. First, a taxpayer aggrieved by an act or omission of an officer or employee of the department may bring an action for damages for frivolous or bad-faith conduct. Case law has interpreted the statute to apply only when the department "pays no attention to" a statute or rule, and does not merely misinterpret it. While fees awarded are uncapped, the strict standard applies to a very narrow class of taxpayers. Another statute allows for a much more relaxed standard, simply permitting prevailing parties to recover fees; however, eligible parties are limited to individual taxpayers with a net worth of $1 million or less and sole owners of business entities with a net worth of $5 million or less or 500 or fewer employees. Nonprofit organizations are not required to abide by those standards to be eligible for fee awards. Another caveat is that fees are limited to $75 per hour unless a higher hourly fee is approved by the court. Beyond the statutes, Ohio has case law awarding attorney fees in a taxpayer class action under the common fund doctrine. Ohio courts have not deviated from the Supreme Court ruling in National Private Truck Council and have denied an award of fees under section 1988 based on the adequacy of the appellate procedure in Ohio.

Georgia finished in the bottom quarter of states based on the unavailability of attorney fees before the tax tribunal and limited scope of litigation costs and fees in the courts. Georgia does not allow attorney fees unless the non-prevailing party has asserted a claim or defense in the complete absence of any justiciable issue of law or fact, lacked substantial justification, or brought the claim or defense for the purpose of delay or harassment. Because of the stringent standard in the provision and lack of additional statutes, attorney fees are not available to Georgia taxpayers in most controversies. One positive is the availability of attorney fees under the common fund doctrine, which the Georgia Supreme Court upheld in 2006 in a taxpayer challenge to the occupational tax. Like most states, Georgia adhered to National Private Truck Council and recently held that the state provides an adequate remedy through its statutorily prescribed appeal process to bar section 1988 fees in state court.

Michigan finished in the top half of states because it allowed at least some attorney fees in both a judicial (court of claims) and an administrative (tax tribunal) venue. While Michigan has traditionally interpreted costs to be limited to court costs, such as filing and transcript fees, two recent cases have awarded attorney fees against the Department of Treasury as part of costs. Under the statute, costs and attorney fees are uncapped, limited only by a reasonableness standard. The two main ways to receive attorney fees in Michigan are by showing that the non-prevailing party asserted a frivolous action or defense or that the taxpayer has sustained a suit to enforce the Headlee Amendments of the Michigan Constitution, which impose revenue limits on the state. Michigan did not have any common fund doctrine cases specific to tax disputes, although the courts have applied the doctrine in other areas, such as workers' compensation. Like most states, Michigan has applied the National Private Truck Council ban on declaratory or injunctive relief under section 1983 when adequate remedies are available under state law. A recent case found that adequate state remedies are available under Michigan law for aggrieved taxpayers.


XI. How States Were Scored

A. Attorney Fees Allowed to Taxpayers? [Six Points]14

This is the most significant factor in the analysis. States that do not allow recovery of attorney fees pose the greatest risk of negative tax implications to taxpayers. This factor is graded on a scale of 0 to 6.

States that allow attorney fees to taxpayers in state court were awarded two points, with an additional point awarded if the provisions applied broadly.

States that allow attorney fees to taxpayers litigating some form of prepayment controversy (administrative or DOR controlled) were awarded two points, with an additional point awarded if the provisions applied broadly.

In some states, such as Louisiana, when attorney fees are permitted to the taxing authority, up to two points were subtracted.

B. Caps and Limits on Attorney Fee Awards [Four Points]

No points were awarded to states that did not allow attorney fees or capped the fees at less than $10,000.

Two points were awarded to states that impose a cap between $10,000 and $100,000.

Three points were awarded to states with caps of $100,000 or more, or that award attorney fees based on a percentage.

Four points were awarded to states with no attorney fee caps.

States did not receive points in excess of the amount received in the previous section. For example, a state with very limited attorney fees authorized only in an administrative tribunal received a maximum of two points -- even if those fees aren't capped.

C. Standard Used to Award Attorney Fees [Four Points]

No points were awarded to states that do not allow attorney fees to taxpayers.

One point was awarded to states that allow attorney fees to taxpayers under the state EAJA only.

Two points were awarded if attorney fees are allowed under limited standards such as intentional or reckless acts or actions brought without justiciable or reasonable basis in fact or law.

Three points were awarded to states if attorney fees are allowed to prevailing parties but limited to cases when the state was not substantially justified in a claim or defense.

Four points were awarded to states that allow attorney fees when the taxpayer is the prevailing party.

The points for states with different caps for administrative and judicial actions were split (for example, a state with four points in court and two points at the administrative level received three points).

D. Court Costs [One Point]

If any court costs (including but not limited to filing fees, charges for serving summonses and subpoenas, witness fees, court reporter charges for depositions, fees for court transcripts, and fees for copying papers and exhibits) are allowed to a prevailing taxpayer-litigant, the state was awarded one point.

States with no court costs available to a prevailing litigant-taxpayer were awarded no points.

E. Bonus Points [Two Points]

States that apply the common fund doctrine or its extension (the substantial benefit doctrine) in a state taxpayer action were awarded one point. States that affirmatively rejected the common fund doctrine in a taxpayer action were penalized one point. States with no cases either way were awarded no points.

States that allow taxpayers to recover attorney fees on the basis of a federal section 1983 claim in state court (ruling that an adequate state remedy did not exist post-National Private Truck Council) were awarded one point. States that ruled that an adequate legal remedy existed (denying section 1983 claims and subsequent attorney fee claims under section 1988) were penalized one point. States with no state tax cases on the matter were awarded no points.


XII. Appendices

Appendix A. Practitioner Acknowledgements

The authors are particularly grateful to the following list of practitioners for their time and expert commentary provided on the availability of attorney fees in tax controversies in their respective state of expertise. The wealth of practical and state-specific information provided on fee recovery was second to none, and the scorecard was significantly advanced by their contributions.

                                  Appendix A.
                          Practitioner Acknowledgments
 ______________________________________________________________________________

 State             Practitioner(s)                       Firm
 ______________________________________________________________________________

 Alabama          Bruce P. Ely and           Bradley Arant Boult Cummings LLP
                  J. Sims Rhyne III

 Arizona          Pat Derdenger              Steptoe & Johnson LLP

 California       Roy E. Crawford            McDermott Will & Emery

 Colorado         Neil I. Pomerantz and      Silverstein & Pomerantz LLP
                  Mark E. Medina

 Connecticut      Charles H. Lenore          Day Pitney LLP

 Florida          William D. Townsend        Fowler White Boggs PA

 Florida          Arthur R. Rosen            McDermott Will & Emery

 Georgia          John M. Allan              Jones Day

 Illinois         Catherine A. Battin        McDermott Will & Emery

 Indiana          David A. Suess             Faegre Baker Daniels LLP

 Kansas           William B. Prugh and       Polsinelli PC
                  D. Scott Lindstrom

 Kentucky         Mark F. Sommer and         Frost Brown Todd LLC
                  Austin R. Byars

 Louisiana        William M. Backstrom Jr.   Jones Walker LLP

 Maine            Martin I. Eisenstein       Brann & Isaacson

 Massachusetts    Philip S. Olsen            Burns & Levinson LLP

 Massachusetts    Richard L. Jones           Sullivan & Worcester

 Massachusetts    Scott M. Susko and         McDermott Will & Emery
                  Daniel Connelly

 Michigan         Lynn A. Gandhi             Honigman Miller Schwartz
                                             and Cohn LLP

 Minnesota        Jerome A. Geis             Briggs and Morgan PA

 New Jersey       Leah Robinson              McDermott Will & Emery

 New Mexico       Timothy R. Van Valen and   Brownstein Hyatt Farber
                  Kassandra M. Bentley       Schreck LLP

 New York         Maria P. Eberle            McDermott Will & Emery

 Ohio             Edward J. Bernert          Baker & Hostetler LLP

 Oklahoma         Martin R. Wing             Conner & Winters

 Pennsylvania     Lee A. Zoeller and         Reed Smith LLP
                  Robert E. Weyman

 South Carolina   John C. von Lehe Jr.       Nelson Mullins Riley &
                                             Scarborough LLP

 Tennessee        Michael D. Sontag and      Bass, Berry & Sims PLC
                  Stephen J. Jasper

 Utah             Steven P. Young            Holland & Hart LLP

 Vermont          Wm. Roger Prescott         Downs Rachlin Martin PLLC

 Virginia         Brian W. Mahoney           Nixon Peabody LLP

______________________________________________________________________

Appendix B.
Detailed Matrix of Data

______________________________________________________________________

Alabama

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, before a court of record; no, before DOR Administrative Law Division. Ala. Code section 12-19-270, et seq. (Alabama Litigation Accountability Act) states that "in any civil action commenced or appealed in any court of record in [Alabama], the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorneys' fees and costs against any attorney or party, or both, who has brought a civil action, or asserted a claim therein, or interposed a defense, that a court determines to be without substantial justification, either in whole or part."

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      Claim or defense without substantial justification.

    Authority/Statute

      Ala. Code section 40-1-14 (any court costs taxed against the state shall be paid by the state and the various tax subdivisions thereof in proportion to the amount of taxes levied by each. The sworn certificate of the clerk or register approved by the comptroller shall be authority for the issuance of any payment of warrants therefore by the proper officers of each tax authority and shall be treated as a preferred claim). Ala. Code section 12-19-270, et seq. (Alabama Litigation Accountability Act) states that "in any civil action commenced or appealed in any court of record in [Alabama], the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorneys' fees and costs against any attorney or party, or both, who has brought a civil action, or asserted a claim therein, or interposed a defense, that a court determines to be without substantial justification, either in whole or part"); Ison v. DOR, No. INC. 13-532 (Admin. L. Div. Dec. 2, 2013) (denying a taxpayer's request for reimbursement of his attorney fees, holding that the Alabama Litigation Accountability Act does not apply to proceedings before the DOR's Administrative Law Division because the division is not a court of record); Al. Act No. 2014-146 (H.B. 105) (establishing the Alabama Tax Tribunal and eliminating the DOR ALD effective Oct. 1, 2014. It is unclear what effect this will have on the availability of attorney fees at the administrative level). Ex parte City of Tuscaloosa, 757 So.2d 1182, 1189 (Ala. 1999) (Alabama courts follow the American rule regarding the payment of attorney fees by the losing party in a lawsuit to the prevailing party).

    Common Fund Doctrine State Tax Case?

      Yes. See City of Ozark v. Trawick, 604 So.2d 360 (Ala. 1992) (in taxpayer action against city for refund of ad valorem taxes, the trial court properly awarded attorney fees equal to percentage of full amount recovered for class). See also City of Bessemer v. McClain, 957 So.2d 1061 (Ala. 2006) (trial court acted within its discretion, after declaring invalid city tobacco tax ordinances, in awarding attorney fees under common benefit theory to counsel for plaintiffs). Dandy's Disc. Package Store Inc. v. Sizemore, 597 So.2d 1370, 1372 (Ala. Civ. App. 1992) (finding that the award of attorney fees in the amount of $200,000, when the common fund is only $38,003, is not justified). But see Patterson v. Gladwin Corporation, 835 So.2d 137 (Ala. 2002) (holding that a class action seeking a refund of corporate franchise taxes paid under Alabama's unconstitutional statutory scheme is an action against the state and impermissible, effectively limiting the applicability of the common fund doctrine to state and local taxes not covered by the Alabama Taxpayers' Bill of Rights).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See Ex parte City of Tuscaloosa, 757 So.2d 1182, 1189 (Ala. 1999) (cases involving the recovery of taxes typically do not fall within any of the recognized exceptions to the American rule, and we decline to create a new exception for taxation cases).
______________________________________________________________________

Alaska

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Alaska Stat. section 29.45.500(a) provides that in tax refund suits the successful taxpayer is entitled to a refund with interest plus costs. The term "costs" is generally construed in Alaska to include attorney fees. Further, the attorney fees included are actual attorney fees rather than the partial standard ordinarily contemplated under Civil Rule 82. Finally, this statute is construed to apply to prior administrative proceedings as well as to proceedings in court. See Kenai Peninsula Borough v. Port Graham Corp., 871 P.2d 1135, 1141 (Alaska 1994).

    If Allowed, Are They Capped? Amount?

      Capped under fee schedule at Alaska Civil Rule 82(b)(1). This does not apply to refund suits.

    Standard for Awarding Attorney Fees

      Successful taxpayer, reasonable standard under Alaska Stat. section 29.45.500.

    Authority/Statute

      Alaska Stat. section 09.60.010 (permitting costs and attorney fees generally in civil action); Alaska Civil Rule 82(b)(1) and State v. Carlson, 270 P.3d 755, 766 (Alaska 2012) (upholding attorney fee award under rule 82(b) for tax overpayment); See also North Slope Borough, Dept. of Admin. And Fin. v. Green Int'l Inc., 969 P.2d 1161 (Alaska 1999) (noting an appellate court's broad discretion in awarding costs and fees to prevailing parties in administrative appeals); Stalnaker v. Williams, 960 P.2d 590, 597 (Alaska 1998) (superior court hearing appeal from administrative agency awards attorney fees under appellate rule instead of rule of civil procedure); Alaska Rule of Appellate Procedure 508(e), Alaska Stat. section 44.64.040(2) (giving ALJs express authority to order a party, a party's attorney, or another authorized representative reasonable expenses, including attorney fees, incurred by the party as a result of actions done in bad faith or to cause unnecessary delay). While section 43.05.460 allows an ALJ to "grant any other relief that the ALJ considers appropriate," the list of available sanctions does not include the paying of costs. Similarly, although Alaska Code section 43.05.465 allows an ALJ to grant relief, provide remedies, and issue any order that is appropriate, Alaska courts have generally prohibited an award of attorney fees in the absence of specific legislative authority. Finally, the State Legislature, in establishing the Office of Tax Appeals (now OAH), did not intend to authorize an ALJ to award attorney fees to a prevailing party (Alaska Stat. section 43.05.460 and section 43.05.456).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Arizona

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, for judicial appeals. Yes, for DOR administrative appeals and munipical administrative appeals.

    If Allowed, Are They Capped? Amount?

      Yes. Limited to the amount the prevailing party has paid or agreed to pay or $175 per hour, whichever is greater (Ariz. Rev. Stat. section 12-348(E)(3)). Overall award limited to $30,000 for fees incurred at each level of judicial appeal (Ariz. Rev. Stat. section 12-348(E)(5)). Caps apply only to attorney fees and not to other expenses (Cyprus Bagdad Copper Corp. v. Arizona Dep't of Revenue, 935 P.2d 923 (App. 1977)). Administrative fees are capped at $20,000 or actual monies spent by the taxpayer, whichever is less. Attorney or other representative fees shall not exceed $100 per hour or actual monies spent, whichever is less, unless the board of tax appeals determines that an increase in the cost of living or a special factor such as the limited availability of qualified attorneys justifies a higher fee (Ariz. Rev. Stat. section 42-2064(E)).

    Standard for Awarding Attorney Fees

      See Ariz. Rev. Stat. section 12-348 (taxpayer must prevail by an adjudication on the merits); Tonto Creek Estates Homeowners Ass'n v. Arizona Corp. Comm'n, 864 P.2d 1081 (Ariz. App. 1983) (in considering whether a party has prevailed by an adjudication on the merits, a court will look to the totality of the litigation to determine whether the party claiming fees prevailed with respect to the significant issues in dispute); 4501 Northpoint LLP v. Maricopa County, 128 P.3d 215 (Ariz. 2006) (a judgment entered under a settlement that reduced the value of the property in a property tax litigation case was an adjudication on the merits). At the administrative level, a taxpayer who is a prevailing party may be reimbursed for reasonable fees and other costs related to an administrative proceeding that is brought by or against the department in connection with an assessment, determination, collection, or refund of any tax listed in Ariz. Rev. Stat. 42-1101. A taxpayer is considered to be a prevailing party if the department's position was not substantially justified and the taxpayer prevails as to the most significant issue or set of issues. Ariz. Rev. Stat. section 42-2064(A) (reimbursement of fees may be denied if during the course of the proceeding the taxpayer unduly and unreasonably protracted the final resolution of the matter or the reason that the taxpayer prevailed is due to an intervening change in the applicable law).

    Authority/Statute

      Ariz. Rev. Stat. section 42-2064 (administrative fees); Ariz. Rev. Stat. section 12-348 (judicial appeals); Ariz. Rev. Stat. section 12-348(I)(1) (court costs). Tonto Creek Estates Homeowners Ass'n v. Arizona Corp. Comm'n, 864 P.2d 1081 (Ariz. Ct. App. 1983) (court will look to totality of the litigation to determine whether the party claiming fees prevailed with respect to the most significant issues in dispute). Cyprus Bagdad Copper Corp. v. Arizona Dep't of Revenue, 935 P.2d 923 (Ariz. Ct. App. 1977) (fee caps apply only to attorney fees, not other recoverable expenses). 4501 Northpoint LP v. Maricopa County, 128 P.3d 215 (Ariz. 2006) (a judgment entered under a settlement that reduced the value of the property in a property tax litigation case was an adjudication on the merits). Model City Tax Code section 578 (allowing recovery of fees at the municipal level in administrative proceedings if the restrictions of DOR administrative appeals are not violated).

    Common Fund Doctrine State Tax Case?

      Yes. See Kerr v. Killian, 3 P.3d 1133 (Ariz. Ct. App. 2000) (attorneys for a class of taxpayers who brought action for refund of state income taxes paid on their federal retirement contributions were properly awarded attorney fees under common fund doctrine). See also Ladewig v. Arizona Dep't of Revenue, 63 P.3d 1089 (Ariz. Tax Ct. 2003) (attorneys for taxpayer that filed a class action lawsuit challenging as unconstitutional the denial of deductions for dividends received from corporations not doing half their business in the state were properly awarded attorney fees under common fund doctrine).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. Cent. Mach. Co. v. State, 730 P.2d 843 (1986) (dismissing motion for attorney fees under section 1988 for lack of enforceable rights for purposes of creating cognizable action under section 1983); Kerr v. Waddell, 916 P.2d 1173, (Ariz. Ct. App. 1996) (denying taxpayers' section 1983 claim where they were entitled to pursue the post-deprivation remedy of a refund).
______________________________________________________________________

Arkansas

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, but limited to illegal extraction class actions, assessment appeals, and civil claims lacking justiciable issue.

    If Allowed, Are They Capped? Amount?

      Under Ark. Stat. section 16-22-309 capped at the lesser of $5,000 or 10 percent of the amount in controversy.

    Standard for Awarding Attorney Fees

      Attorney fees are authorized in class actions when a taxpayer proves a municipal tax is an illegal exaction. In an assessment context, attorney fees are allowed if the director revised a decision of the hearing officer in favor of the taxpayer. Under Ark. Code Ann. section 26-18-405, the taxpayer is the prevailing party in an action for judicial relief from the determination of the director, and the court finds that the director's revision was without a reasonable basis in law and fact.

    Authority/Statute

      Ark. Code Ann. section 26-35-902(a) (attorney fees allowed in illegal extraction cases. The circuit courts may, in meritorious litigation brought under Arkansas Constitution, Article 16, section 13, in which the court orders any county, city, or town to refund illegally extracted monies, apportion a reasonable part of the recovery to the attorneys of record and order the return or refund of the balance to the members of the class represented); Ark. Code Ann. section 26-18-406(e) (assessments); Ark. Code Ann. section 16-22-309 (attorney fees in civil actions lacking justiciable issue).

    Common Fund Doctrine State Tax Case?

      Affirmatively against. See Weiss v. Chavers, 184 S.W.3d 437, 443 (Ark. 2004) (holding that where the trial court created a common fund and awarded taxpayers attorney fees from the fund, voluntary payment of taxes precludes recovery).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

California

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, at both the judicial and administrative levels.

    If Allowed, Are They Capped? Amount?

      Yes. Capped at $125 per hour (Cal. Rev. & Tax. section 19717) or $75 per hour (Cal. Rev. & Tax. section 7156) unless the court determines there is a special factor that justifies more. Limited availability of qualified attorneys is a valid special factor. See Lucent Technologies Inc. v. State Board of Equalization, Case No. BC474710 (Cal. Sup. Ct. 2014) (awarding fees of $500 per hour after the BOE attempted to "test the waters" when there was clear, binding precedent to the prevailing attorneys based on their unique qualifications).

    Standard for Awarding Attorney Fees

      Under Cal. Rev. & Tax. Code sections 19717 and 7156, the taxpayer must substantially prevail with respect to the amount in controversy or the most significant issue or set of issues presented and the state's position must not be substantially justified; Cal. Rev. & Tax. Code section 19717 (prevailing party may be awarded a judgment for reasonable litigation costs incurred in the case of any civil proceeding brought by or against the state in a court of record in connection with the determination, collection, or refund of any tax, interest, or penalty); See also Cal. Rev. & Tax. Code section 7156 (Taxpayers' Bill of Rights grants trial courts the power to award attorney fees and costs to parties who have prevailed in tax litigation where the state's position was "not substantially justified"); Cal. Code of Civil Procedure section 1021.5 (private attorney fees may be awarded to a successful party that enforces an important right affecting the public interest, conferring a significant benefit on the general public, or a large class of persons); Cal. Gov't Code section 800 (allows fees when there is arbitrary or capricious action or conduct by public entity or officer). For administrative fees, Cal. Rev. & Tax. Code section 21013 states that every taxpayer is entitled to be reimbursed for reasonable fees and expenses related to an appeal before the BOE if the taxpayer files a claim and the BOE finds the action taken by the FTB's staff was unreasonable.

    Authority/Statute

      Cal. Rev. & Tax. Code section 21013 (administrative fees before SBE); Cal. Rev. & Tax. Code sections 21022, 19717, 7156, 5156, and 5152 (attorney fees allowed in recovery on void assessment in violation of constitutional provision, statute, or regulation); Cal. Civ. Proc. Code section 1021.5; Cal. Civ. Proc. Code section 1032(b) (except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding); Ventas Fin. I LLC v. California Franchise Tax Bd., 81 Cal. Rptr. 3d 823 (Cal. Ct. App. 2008) (holding that a partial reversal of trial court judgment that LLC was entitled to full refund required reversal of attorney fee award and the statute permitting reasonable litigation costs in tax refund actions is not the exclusive means of recovering attorney fees in such actions and must be considered along with the Code of Civil Procedure); Cal. Gov't Code section 800; NW. Energetic Servs. LLC v. California Franchise Tax Bd., 71 Cal. Rptr. 3d 642, 666 (Cal. Ct. App. 2008) (explicitly stating that section 19717 does not preclude application of attorney fees under Cal. Civ. Proc. Code section 1032 to a tax refund case); Lucent Technologies Inc. v. State Board of Equalization, No. BC474710 (Cal. Sup. Ct. 2014) (awarding attorney fees to the taxpayers counsel in a case where the BOE attempted to "test the waters" when a clear precedent existed; $2.6 million in fee, $500 per hour, was awarded in the case under section 7156 despite the $75 per hour limit based on the unique qualification of the attorneys).

    Common Fund Doctrine State Tax Case?

      Yes. See Rider v. Cnty. of San Diego, 11 Cal. App. 4th 1410 (Cal. Ct. App. 1992) (taxpayers brought action challenging validity of retail transaction and use tax imposed by county regional justice facility financing agency. Taxpayers' attorneys should be paid their reasonable attorney fees under the well-established equitable doctrine of the common fund theory); See also Ventas Fin. I LLC v. California Franchise Tax Bd., 165 Cal. App. 4th 1207 (Cal. Ct. App. 2008) (holding that Cal. Rev. & Tax. Code section 19717, Cal. Civ. Proc. Code section 1021.5, and the common fund doctrine provide different remedies befitting different situations for tax cases).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See Gen. Motors Corp. v. City & Cnty. of San Francisco, 69 Cal. App. 4th 448 (Cal. App. Ct. 1999) (out-of-city automobile manufacturer that successfully challenged city's imposition of business taxes that discriminated in favor of local manufacturers was not entitled to any relief or attorney fees under federal civil rights law where the adequate state remedy of a full refund of the business taxes it paid existed); See also Union Oil Co. of Cal. v. City of Los Angeles, 79 Cal. App. 4th 383 (Cal. App. Ct. 2000) (refund of taxes imposed was an adequate legal remedy, precluding award of attorney fees under federal civil rights attorney fee statute); See also Writers Guild of Am., W. Inc. v. City of Los Angeles, 77 Cal. App. 4th 475 (Cal. App. Ct. 2000) (an adequate legal remedy for plaintiffs in the form of a suit for a refund in superior court, in which constitutional objections to the BTO may be raised with the right of appeal of any adverse decision, barred section 1983 claims by limited jurisdiction); Flying Dutchman Park Inc. v. City & Cnty. of San Francisco, 93 Cal. App. 4th 1129 (Cal. App. Ct. 2001) (stating that in California any remedy that allows a taxpayer to challenge a tax already collected, and to press any constitutional claims she may have, has been found to constitute "a plain, speedy and efficient remedy" barring equitable relief absent "rare and exceptional circumstances").
______________________________________________________________________

Colorado

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes

    If Allowed, Are They Capped? Amount?

      Generally no. However, $250,000 limit for class actions against public entities, subject to a reasonableness standard.

    Standard for Awarding Attorney Fees

      Discretionary and granted to prevailing taxpayer only when a claim or defense asserted by a state or local government lacks "substantial justification" (meaning substantially frivolous, substantially groundless, or substantially vexatious) under C.R.S. section 13-17-102 or a state or local government violates the Taxpayer Bill of Rights (Colo. Const. Art. X, section 20).

    Authority/Statute

      Colo. Rev. Stat. Ann. section 13-17-102 (reasonable attorney fees allowed against any party that brought a claim or defense that lacked substantial justification); Colo. Constit. Art. X, section 20 (successful plaintiffs are allowed costs and reasonable attorney fees, but the state or local government is not unless a suit against it is frivolous); City of Wheat Ridge v. Cerveny, 913 P.2d 1110 (Colo. 1996) (indicating that that the recovery of attorney fees for victorious taxpayer litigants is not mandatory but rather discretionary; where plaintiff has had only partial success in action under Taxpayer's Bill of Rights (Art. X, section 20), the court must exclude time and effort expended on losing issues if it chooses to award attorney fees); C.R.S. section 13-16-104 (if any person sues in any court of this state in any action, real, personal, or mixed, or upon any statute for any offense or wrong immediately personal to the plaintiff and recovers any debt or damages in such action, then the plaintiff or demandant shall have judgment to recover against the defendant his costs to be taxed); C.R.S. section 13-17-203 (if the plaintiffs prevail in any class action litigation brought against any public entity, the amount of attorney fees which the plaintiffs' attorney is entitled to receive out of any award to the plaintiffs shall be determined by the court; except that such amount shall not exceed $250,000. Such limitation shall apply where the public entity pays the attorney fees directly to the plaintiffs' attorneys or where the public entity is required to pay the attorney fees indirectly through any program it administers by reducing the benefits or amounts due to the individual plaintiffs); Buckley Powder Co. v. State, 70 P.3d 547 (Colo. Ct. App. 2002) (taxpayers challenging state motor vehicle tax claims are precluded because adequate state remedies of declaratory relief, injunctive relief under state law, and administrative remedies are available, together with judicial review thereof).

    Common Fund Doctrine State Tax Case?

      Yes. Kuhn v. State, 924 P.2d 1053, 1060 (Colo. 1996) (C.R.S. section 13-17-203 could not be retrospectively applied to defeat class counsel's right to a court-ordered reasonable fee to be paid out of the common fund in taxpayers challenge to state income tax scheme. The court did not reach the broader issues concerning constitutionality of the statute as applied to common fund attorney fees that vest after the enactment of C.R.S. section 13-17-203); See also Buckley Powder Co. v. State, 70 P.3d 547, 560 (Colo. Ct. App. 2002) (upholding the constitutionality of the section 13-17-203 cap on attorney fees in taxpayer class action, against state and state officials challenging constitutionality of motor vehicle taxes imposed on trucks used in interstate commerce by way of common fund).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See State v. Golden's Concrete Co., 962 P.2d 919 (Colo. 1998) (owners of trucks used in intrastate commerce challenged DOR backbilling of truck registration fees and were denied a section 1983 claim on the basis that the district court lacked jurisdiction to hear the state law claims because Golden's failed to exhaust its administrative remedies before filing in district court. The claim for damages under section 1983 was barred by the principle of comity and section 1988 attorney fees preempt Colorado's attorney fees statute, C.R.S. section 13-17-201, regarding the award of attorney fees to a prevailing defendant on a section 1983 claim).
______________________________________________________________________

Connecticut

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      No

    If Allowed, Are They Capped? Amount?

      n/a

    Standard for Awarding Attorney Fees

      n/a

    Authority/Statute

      n/a

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      No

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See Jade Aircraft Sales Inc. v. Crystal, 674 A.2d 834, 839 (Conn. 1996) (trial court did not have jurisdiction to entertain a section 1983 claim where the plaintiff had an opportunity to receive both legal and equitable relief, which was determined to be an adequate remedy).
______________________________________________________________________

Delaware

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      No

    If Allowed, Are They Capped? Amount?

      n/a

    Standard for Awarding Attorney Fees

      n/a

    Authority/Statute

      Delaware Tax Appeal Board Rules do not expressly address attorney fees, thus according to their rules, they defer to the rules of the Delaware Superior Court. Accordingly, attorney fees are not allowed as costs. See Superior Ct. Civ. Pro. Rule 54(i).

    Common Fund Doctrine State Tax Case?

      Yes. See Korn v. New Castle Cnty., 922 A.2d 409, 413 (Del. 2007) (taxpayer litigation led the county to return approximately $540,000 to the taxpayers -- a tangible benefit that is both substantial and quantifiable. The taxpayers who received that benefit should, as a matter of equity, share the attorney fees incurred to obtain it under the common fund doctrine).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

District of Columbia

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      No. However, the taxpayer may be responsible for attorney fees of a collection agency empowered by the District under D.C. Code section 47-4405.

    If Allowed, Are They Capped? Amount?

      n/a

    Standard for Awarding Attorney Fees

      n/a

    Authority/Statute

      D.C. Code section 2-1831.09(b) (fees and costs not listed under ALJ's authority); D.C. Code section 2-1803.02 (before an ALJ, the costs of any appeal, including, but not limited to, the expense of providing a transcript of the hearing, shall be borne by the appellant unless excused by the mayor under rules issued by the mayor); D.C. Code section 15-702 (an attorney for the District of Columbia may not retain attorney fees taxed as costs in litigation in which the District is a party); D.C. Code section 15-705(a) (the District or any officer thereof acting therefore may not be required to pay court costs or fees in any court in and for the District); D.C. Code section 47-4405 (for the purpose of collecting delinquent taxes due from a taxpayer, the mayor may contract with a collection agency inside or outside the District. The costs of collection, including reasonable attorney or agent fees, shall be the responsibility of the delinquent taxpayer. In addition to the costs of collection, the agency may charge a fee not to exceed 25 percent of the total amount of the delinquent taxes, including penalties and interest, that is actually collected); DC R TAX Rule 3(a) (omitting both the attorney fee (Rule 54(d)) and costs (Rule 54-I(b)) provisions from the list of Superior Court Rules of Civil Procedure applicable to actions brought in the tax division of the superior court).

    Common Fund Doctrine State Tax Case?

      Yes. See D.C. v. Green, 381 A.2d 578 (D.C. 1977) (permitting the common fund exception on the basis of tax savings realized by affected taxpayers. Thus, the trial court could exercise jurisdiction over the District to require collection of appropriate fees from the benefitted taxpayers. However, here no fund was actually created so no award was justified).

    Court Costs?

      No

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See D.C. v. Craig, 930 A.2d 946, 964-965 (D.C. 2007) (the administrative appeal/tax refund suit process established by D.C. Code sections 47-825.01(f-1) and (j-1) afforded property owners an adequate remedy for challenging their tax year 2002 assessments, limiting any potential jurisdiction under section 1983); But see Miller v. D.C., 587 A.2d 213, 215 (D.C. 1991) (the exhaustion of administrative remedies is not a prerequisite to bringing an action under section 1983 in District courts).
______________________________________________________________________

Florida

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes

    If Allowed, Are They Capped? Amount?

      No, but if fees are requested under EAJA, then capped at $50,000.

    Standard for Awarding Attorney Fees

      The prevailing party, including either the DOR or the taxpayer, may recover costs, including reasonable attorney fees in both judicial and administrative actions if the action was "brought or maintained without the support of justiciable issues of fact or law."

    Authority/Statute

      Fla. Stat. Ann. section 213.015(14) (establishing the right of the taxpayer or the department, as the prevailing party in a judicial or administrative action brought or maintained without the support of justiciable issues of fact or law, to recover all costs of the administrative or judicial action, including reasonable attorney fees, and of the department and taxpayer to settle such claims through negotiations); Fla. Stat. Ann. section 120.80 (prevailing appellant in a taxpayer contest administrative proceeding may be awarded reasonable attorney fees and reasonable costs if the DOR improperly rejects or modifies a conclusion of law); Fla. Stat. Ann. section 605.1070 (court costs specifically allowed for appraisal proceeding); Fla. Stat. Ann. section 57.111 (Florida EAJA, allowing small businesses to recover attorney fees and costs at a lesser standard for state initiated action); Fla. Stat. Ann. section 57.105 (attorney fees for unsupported claims or defenses, delay in litigation); Fla. Stat. Ann. section 120.595 (allowing attorney fees at administrative level for actions brought for an improper purpose).

    Common Fund Doctrine State Tax Case?

      Yes. See Kuhnlein v. DOR, 662 So.2d 309 (Fla. 1995) (attorneys who successfully represented state taxpayers in class litigation with the DOR which ultimately generated common fund of nearly $200 million were entitled to enhancement of base lodestar fee, in recognition of contingency risk and of substantial benefit that litigation conferred on class members, noting it is within the trial court's discretion whether to use the lodestar or percentage approach to awarding attorney fees in common-fund cases).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Georgia

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Limited to fraud. No, before the Tax Tribunal.

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      O.C.G.A. section 9-15-14 (reasonable and necessary attorney fees and expenses shall be awarded to any party if the losing party asserted a claim, defense, or other position that it could not be reasonably believed that a court would accept. Also allowed where any party lacked substantial justification for an action or interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct). No award where a good faith attempt was made to establish a new theory of law in Georgia if supported by some precedential or persuasive authority.

    Authority/Statute

      O.C.G.A. section 9-15-14 (in any civil action in any court of record, reasonable and necessary attorney fees and litigation expenses shall be awarded to any party against whom another party has asserted a claim, defense, or other position with a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept. The court may assess reasonable and necessary attorney fees and expenses in any civil action in any court if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures. "Lacked substantial justification" means substantially frivolous, substantially groundless, or substantially vexatious. Further fees shall not be assessed where a claim or defense was asserted in a good faith attempt to establish a new theory of law if the new theory is based on some recognized precedential or persuasive authority); Ga. Comp. R. & Regs. 616-1-3 (Administrative Rules of Procedure before the tax tribunal which do not mention attorney fees).

    Common Fund Doctrine State Tax Case?

      Yes. See Barnes v. City of Atlanta, 637 S.E.2d 4, 7 (Ga. 2006) (challenge to occupational tax on attorneys in which court states that Georgia adheres to the common-fund doctrine); See also State v. Private Truck Council of Am. Inc., 371 S.E.2d 378 (Ga. 1988) (representatives of class challenging constitutionality of tax statute were entitled to attorney fees, payable out of taxes collected in escrow account while suit was pending, under common-fund doctrine).

    Court Costs?

      No

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See Glynn Cnty. Bd. of Tax Assessors v. Haller, 543 S.E.2d 699, 701 (Ga. 2001) (taxpayers brought section 1983 action against board of tax assessors to enjoin allegedly unconstitutional spot reappraisals. According to the court, O.C.G.A. section 48-5-311 provides a statutory appeals process for taxpayers to challenge a property tax assessment based on the issues of taxability, uniformity, and value, and therefore an adequate remedy at law exists).
______________________________________________________________________

Hawaii

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, but limited to fraud and small businesses.

    If Allowed, Are They Capped? Amount?

      No, but if fees are requested under Haw. Rev. Stat. section 661-12 they are limited to the lesser of $7,500 or $75 per hour.

    Standard for Awarding Attorney Fees

      Generally requires a finding that all or a portion of the party's claim or defense was frivolous and not reasonably supported by the facts and law. If under Haw. Stat. section 661-12 (independently owned small business), award only requires the agency lacked a reasonable basis for its action.

    Authority/Statute

      Haw. Rev. Stat. section 607-14.5 (in any civil action where a party seeks money damages or injunctive relief, or both, against another party, and the case is subsequently decided, the court may, as it deems just, assess against either party, whether or not the party was a prevailing party, and enter as part of its order, a reasonable sum for attorney fees and costs, in an amount to be determined by the court upon a specific finding that all or a portion of the party's claim or defense was frivolous and not reasonably supported by the facts and the law in the civil action); See also Haw. Rev. Stat. section 661-12 (in actions against state agencies only allowed for small (fewer than 50 employees) businesses).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Idaho

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      Idaho Code section 12-117 (fees awarded if nonprevailing party "acted without a reasonable basis in fact or law"); Idaho Code section 63-4011 (taxpayer entitled to attorney fees in the case of a violation of the Taxpayers' Bill of Rights although the commission may not be held liable if they show by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error).

    Authority/Statute

      Idaho Code section 12-117 (party acted without reasonable basis in fact or law); Idaho Code section 12-121 (allowing generally for attorney fees in civil action not involving the state or state agency as a party); Idaho Code section 12-120(1) (imposing additional requirements for claims of $35,000 or less); University of Utah Hosp. v. Board of Commissioners, 915 P.2d 1387 (Id. Ct. App. 1996) (because an appeal to the district court under the Idaho APA does not constitute a civil action as defined by Idaho Civil Procedure Rule 3(a), attorney fees were not available); Idaho Code section 63-4011(1)(c) (providing for the recovery of reasonable attorney fees when the taxpayer establishes the state tax commission's liability under the Taxpayers' Bill of Rights).

    Common Fund Doctrine State Tax Case?

      No. But see Ada County v. Red Steer Drive-Ins of Nevada Inc., 609 P.2d 161 (Idaho 1980) (while there may have been some benefit to the general public in bringing the discriminatory assessment practices to light before the board of tax appeals, where the only substantial benefit after that was a monetary recovery of excess tax payments by taxpayer and the other affected property owners, it was contrary to the public interest to shift the attorney fees incurred by taxpayers onto the county under a private attorney general theory).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Illinois

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, in courts and under Illinois APA. No, in Independent Tax Tribunal.

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      Fees for an attorney or accountant to aid a taxpayer in an administrative hearing relating to the tax liability or in court shall be recoverable against the department if the taxpayer prevails in an action under the Administrative Review Law and the department has made an assessment or denied a claim without reasonable cause. Under the APA, an allegation is made by the agency without reasonable cause and found to be untrue or in any case in which a party has any administrative rule invalidated by a court for any reason, including but not limited to the agency exceeding its statutory authority or the agency's failure to follow statutory procedures in the adoption of the rule.

    Authority/Statute

      20 ILCS 2520/7 (the fees for an attorney or accountant to aid a taxpayer in an administrative hearing or in court shall be recoverable against the department if the taxpayer prevails in an action under the Administrative Review Law and the department has made an assessment or denied a claim without reasonable cause); 35 ILCS 1010/1-55(d) (tax tribunal shall not assign any costs or attorney fees incurred by one party against another party); 5 ILCS 100/10-55 (under the APA, any contested case initiated by any agency that does not proceed to court for judicial review in which an allegation is made by the agency without reasonable cause and found to be untrue shall subject the agency making the allegation to the payment of the reasonable expenses, including reasonable attorney fees, actually incurred in defending against that allegation. Also in any case in which a party has any administrative rule invalidated by a court for any reason, including but not limited to the agency exceeding its statutory authority or the agency's failure to follow statutory procedures in the adoption of the rule, the court shall award the party bringing the action the reasonable expenses including attorney fees under the Illinois APA); 735 ILCS 5/5-108 (any person that sues in any court of this state in any action for damages personal to the plaintiff, and recovers in such action, shall recover costs against the defendant, to be taxed, and the same shall be recovered and enforced as other judgments for the payment of money).

    Common Fund Doctrine State Tax Case?

      Yes. See Leader v. Cullerton, 343 N.E.2d 897 (Ill. 1976) (attorneys for taxpayers filing a class action tax suit which resulted in a determination that the tax was unconstitutional were entitled to an award from a separate fund); abrogated by Brundidge v. Glendale Fed. Bank, F.S.B., 659 N.E.2d 909 (Ill. 1995) (stating that determining fees to be granted to plaintiffs' counsel in common fund class action litigation, court may choose either percentage-of-the-award method or lodestar method); See also Ryan v. City of Chicago, 654 N.E.2d 483 (Ill. App. Ct. 1995) (a class of firefighter participants in city pension funds successfully brought an action challenging the city's retention of pension tax levies for its own use and allowed common fund attorney fees using percentage of the award method of calculation).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Indiana

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, but very limited. Applicable in appeals of final determinations made by the DOR.

    If Allowed, Are They Capped? Amount?

      Yes. At a rate of $75 per hour with a cap of $10,000 or $30,000 for a case in which three or more parties have prevailed (Ind. Code section 34-52-2-4). But see Lacey v. Dep't. of State Revenue, 959 N.E.2d 936 (Ind. Tax Ct. 2011) (permitting attorney fees at hourly rates exceeding $75 where the taxpayer continued to litigate tax claims after it became clearly frivolous).

    Standard for Awarding Attorney Fees

      Ind. Code section 34-52-2 (fees are awarded where the party files a written notice of its intent to seek reimbursement not later than 30 days after the party files any pleading or other paper with the court; the party obtained final judgment in its favor; the party has obtained substantive relief that makes it probable that the party will prevail on the merits after remand of the case to the agency; the party is a business entity with fewer than 50 employees, at the time the action was initiated; the fees are based upon the number of actual hours of service performed multiplied by a reasonable fee for the service rendered not to exceed $75 per hour; and the party filed a claim not later than 30 days after a final judgment was rendered. Court may not award fees or expenses when the agency as a party had a reasonable basis for its position).

    Authority/Statute

      Ind. Code Ann. section 34-52-2-1 (allowing recovery of attorney fees against the state in an appeal of a final determination made by the Department of Revenue); Ind. Code Ann. section 34-52-2-2 (fees permitted where the court finds the party filed a written notice of the party's intent to seek reimbursement not later than 30 days after the party files any pleading or other paper with the court; the party obtained final judgment in its favor; the party has obtained substantive relief that makes it probable it will prevail on the merits after remand of the case to the agency, if remand is necessary; the party is a business entity with fewer than 50 employees, at the time the action was initiated; the fees are based upon the number of actual hours of service performed multiplied by a reasonable fee for the service rendered not to exceed $75 per hour; and the party filed a claim not later than 30 days after a final judgment was rendered); See also Ind. Code Ann. section 34-52-2-3 (attorney fee awards not allowed where the agency as a party had a reasonable basis for its position); State Bd. of Tax Commissioners v. Town of St. John, 751 N.E.2d 657 (Ind. 2001) ("under what is now Ind. Code Ann. section 34-52-2-2, 3, small businesses and not-for-profit organizations may recover limited attorney fees against state agencies that have acted unreasonably").

    Common Fund Doctrine State Tax Case?

      None. Although affirmatively against private attorney general exception and substantial benefit doctrine. See State Bd. of Tax Commissioners v. Town of St. John, 751 N.E.2d 657 (Ind. 2001) (holding that Indiana does not recognize the private attorney general exception to general American rule and that the right to recover attorney fees from one's opponent does not exist in absence of statute or some agreement); But see Cmty. Care Centers Inc. v. Indiana Family & Soc. Servs. Admin., 716 N.E.2d 519 (Ind. Ct. App. 1999) (nontax case applying common fund doctrine in an action where nursing homes brought a class action alleging that the state's Medicaid reimbursement scheme violated federal civil rights statutes and state law).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None, post-National Private Truck Council. For pre-National Private Truck Council, see Harlan Sprague Dawley, Inc. v. Dept. of State Rev., 583 N.E.2d 214 (Ind. Tax Ct. 1991) (holding that a state remedy is not adequate for section 1983 purposes if it fails to provide for the recovery of attorney fees because if the state burdens a taxpayer's federal rights, she may be unable to protect her constitutional rights due to the expense of litigation).
______________________________________________________________________

Iowa

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes

    If Allowed, Are They Capped? Amount?

      Yes. Reasonable litigation costs shall not exceed $25,000 per case.

    Standard for Awarding Attorney Fees

      A prevailing taxpayer is a one that establishes that the position of the state was not substantially justified and that has substantially prevailed with respect to the amount in controversy or has substantially prevailed with respect to the most significant issue or set of issues presented. Under the small business statute, actions by natural persons or an entity with fewer than 20 employees and less than $1 million gross receipts (or less than $2 million over a three-year period) in which the state's role is primarily non-adjudicative are allowed to recover attorney fees if they are the prevailing taxpayer.

    Authority/Statute

      Iowa Code Ann. section 421.60(4) (a prevailing taxpayer in an administrative hearing or a court proceeding related to the determination, collection, or refund of a tax, penalty, or interest may be awarded reasonable litigation costs, not to exceed $25,000, by the department, state board of tax review, or a court, incurred subsequent to the issuance of the notice of assessment or denial of claim for refund in the proceeding, including reasonable expenses, costs, and fees of independent attorneys or independent accountants); Iowa Code Ann. section 625.29(3) (fees and expenses against the state allowed if individual taxpayer or small business entity prevails, and the state was not substantially justified); Iowa Dept. of Revenue Brochure 78-619 (2011) (a taxpayer may be able to recover some administrative and litigation costs if a favorable order is entered in an administrative hearing or a court proceeding, the department's position was substantially unjustified on most issues, and the taxpayer files a request).

    Common Fund Doctrine State Tax Case?

      Affirmatively against. See Hagge v. Iowa Dep't of Revenue & Fin., 539 N.W.2d 148 (Iowa 1995) (reversing common fund award to attorneys that succeeded in an income tax refund suit on behalf of a class of retired federal employees).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Kansas

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, both judicially and before the court of tax appeals.

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      Taxpayer must show that an assessment or claim asserted by the DOR is without a reasonable basis in law or fact and must first exhaust its administrative remedies before an award of attorney fees may be made.

    Authority/Statute

      Kan. Stat. Ann. section 79-3268(e)-(f) (a taxpayer may be awarded attorney fees and related expenses if it is proven that an assessment or claim has no reasonable basis in law or in fact); Kan. Stat. Ann. section 74-2437a (witness fees and mileage shall be allowed and may be taxed as costs to either party at the discretion of the court of tax appeals); In re City of Wichita, 86 P.3d 513 (Kan. 2004) (DOR's tax assessment against the city had a reasonable basis in law and fact and thus the city was not entitled to attorney fees); Stevenson v. Robinson, 917 P.2d 893, 895 (Kan. App. Ct. 1996) (award of attorney fees is within the discretion of the district court upon a finding that the claim or assessment challenged is without a reasonable basis in law or fact); Rieke v. Kansas Dep't of Revenue, 18 P.3d 243 (Kan. App. Ct. 2001).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Kentucky

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, in civil actions under Kentucky Rule of Civ. Pro. Rule 54.04 and KRS 453.260. No in administrative hearings.

    If Allowed, Are They Capped? Amount?

      Yes. Capped at $40 per hour (or the amount that the prevailing party paid or agreed to pay) unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys, justifies a higher fee; maximum of $10,000 per party (KRS section 453.260(4)(a)-(b)); But see Cabinet for Human Resources v. S.R.J, 706 S.W.2d 431 (Ky. App. 1986) (holding that an award of attorney fees equaling $75 an hour did not violate KRS 453.260(4)). The court relied on KRS 453.260(1), which states that the statute itself only applies to final adjudications on the merits of a case and the costs awarded under the statute are in addition to any costs which were awarded as prescribed by a statute).

    Standard for Awarding Attorney Fees

      KRS section 453.260(2) (the court may deny or reduce the award if it finds that: (a) during the course of the proceeding the prevailing party unduly and unreasonably protracted resolution of the matter; (b) the reason that the party other than the commonwealth has prevailed is an intervening change in the applicable statutes, regulations, or case law; (c) the prevailing party refused an offer of civil settlement which was at least as favorable as the relief ultimately granted; or (d) the position of the commonwealth was substantially justified or a special circumstance would make an award unjust provided); See also Schmitt Furniture Company Inc., 722 S.W.2d 889 (Ky. 1987); But see Flag Drilling Co., Inc. v. Erco, Inc., 156 S.W.3d 762 (Ky. App. 2005) (holding that ordinarily a prevailing party may not collect a reasonable attorney fee from the loser and is not allowed as a cost of litigation in the absence of a statute or contract that expressly provides for the award of attorney fees. However, attorney fees may be awarded in equity, within the court's discretion, based on the facts and circumstances).

    Authority/Statute

      Kentucky Rule of Civil Procedure rule 54.04 permits a Kentucky court to award costs to the prevailing party, but costs will only be imposed against the commonwealth to the extent permitted by law. Under KRS section 453.010, no judgment for costs may be rendered against the commonwealth unless specifically provided by statute; however, a judge may require the commonwealth to pay costs in certain civil actions filed in a court of competent jurisdiction. Under KRS section 453.260(3), a party may apply for an award of attorney fees under the rules of civil procedure if the requesting party alleges that the commonwealth acted without substantial justification. Attorney fees will not be awarded in tax matters before Kentucky administrative agencies; See Bault's Langley Auto Center v. Revenue Cabinet, File No. K94-R-19 (KBTA 1995) (ruling there was no statute authorizing an award of attorney fees to a prevailing party in an administrative hearing governed by KRS Chapter 13B and that the rules allowing for attorney fees in Kentucky civil actions did not apply to administrative hearings); KRS section 453.260(1) (allowing attorney fees in civil actions brought by the commonwealth against the party or civil action brought by the party against the commonwealth to challenge the assessment or collection of taxes); Cabinet for Human Resources v. S.R.J, 706 S.W.2d 431 (Ky. App. 1986).

    Common Fund Doctrine State Tax Case?

      Yes. See Com., Revenue Cabinet v. St. Ledger, 955 S.W.2d 539, 543 (Ky. Ct. App. 1997) (based on KRS section 412.070 and given the cabinet's previous acknowledgement of the appropriateness of that method of awarding fees, the trial court did not abuse its discretion in concluding that counsel for taxpayers in a successful challenge of the corporate shares tax was entitled to fees from the common fund). See also Flag Drilling Co., Inc. v. Erco Inc., 156 S.W.3d 762 (Ky. Ct. App. 2005) (acknowledging the potential for a common fund doctrine argument despite the fact that it was not preserved for appeal due to failure of taxpayer to raise it at the trail court level).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. Commonwealth v. Gossum, 887 S.W.2d 329 (Ky. 1994) (holding that the taxpayer's claim for attorney fees under sections 1983 and 1988 was not cognizable in state court because the taxpayers had an adequate remedy under state law); See also St. Ledger v. Revenue Cabinet, 942 S.W.2d 893, at 902 (Ky. 1997) (appellants had an adequate remedy under Kentucky law for their objections to the tax consisting of (1) a declaratory relief action in circuit court where all constitutional challenges to the two ad valorem taxes could be litigated fully, or (2) the filing of an application for a refund from the state).
______________________________________________________________________

Louisiana

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      No to taxpayers. Multiple avenues for attorney fees to be awarded to outside counsel for the DOR in both state and local tax litigation.

    If Allowed, Are They Capped? Amount?

      Outside counsel fees are limited by statute to 10 percent of the taxes, penalties, and interest due. See La. Rev. Stat. Ann. section 47:1512 (state) and La. Rev. Stat. Ann. section 47:337.13.1 (local).

    Standard for Awarding Attorney Fees

      Factors considered by the court in awarding attorney fees: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. See J. Ray McDermott Inc. v. Morrison, 705 So.2d 195 (La. Ct. App. 1997). For local level fees, the position of the non-prevailing party was not substantially justified (no reasonable basis in law and fact). Additionally the local collector can waive its attorney fee award and prevent a taxpayer from recovering attorney fees. See La. Rev. Stat. Ann. section 47:337.13.1(C).

    Authority/Statute

      La. Code of Civil Proc. Art. 1920 (court costs); La. Rev. Stat. Ann. section 13.5112 (suits against the state or political subdivision and court costs); Avants v. Kennedy, 837 So.2d 647 (La. Ct. App. 2002) (allowing attorney fees in a class action sales tax refund suit on the basis of common fund doctrine); La. R.S. Ann. section 47:1512 (private counsel employed by DOR to impose a 10 percent attorney fee charge to taxpayers); La. R.S. Ann. section 47:1998 (tax assessment procedure allowing Louisiana Tax Commission to recover fees and costs against taxpayer when they lose an assessment appeal or bring a frivolous suit); Telecable Associates Inc. v. Louisiana Tax Com'n, 694 So.2d 279 (La. Ct. App. 1995) (costs allowed in ad valorem tax assessment protest); J. Ray McDermott Inc. v. Morrison, 702 So.2d 364 (La.Ct. App. 1997); La. State Bar Article 16 RPC Rule 1.5; La. R.S. Ann. section 47:337.13.1 (outside counsel hired by local collector entitled to attorney fees of up to 10 percent of the amount in dispute, subject to reasonableness standard; however, fees are not recoverable if the non-prevailing party is substantially justified (has a reasonable basis in fact and law) or if the local collector waives its rights to attorney fees).

    Common Fund Doctrine State Tax Case?

      Yes. See Avants v. Kennedy, 840 So.2d 1215 (La. Ct. App. 2002) (common fund attorney fees were awarded after a settlement agreement between taxpayers and the DOR arising from dispute over sales and use taxes paid on purchase of manufactured and mobile homes).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See Graugnard v. Capital Area Transit Sys., 2012-2025 (La. Ct. App. 2013) (taxpayers had adequate remedy to challenge state tax under La. R.S. 18:1294, protecting the federal rights at issue and limiting a section 1983 action consistent with National Private Truck Council); But see Rowan Companies Inc. v. Louisiana State Tax Comm'n, 623 So.2d 159 (La. Ct. App. 1993) (holding that a taxpayer, after prevailing in a protest to an assessment, stated a cause of action under section 1983 and thus was entitled to recover attorney fees under section 1988).
______________________________________________________________________

Maine

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      No

    If Allowed, Are They Capped? Amount?

      n/a

    Court Costs?

      Yes

    Standard for Awarding Attorney Fees

      n/a

    Authority/Statute

      Me. Rev. Stat. tit. 14, section 1502-B (generally allowing the following costs to prevailing parties in civil actions: filing fees, fees for service of process, witnesses attendance fees and travels costs, travel expenses, and other costs as directed by rule of the state supreme court).

    Common Fund Doctrine State Tax Case?

      None

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See Camps Newfound/Owatonna Corp. v. Town of Harrison, 705 A.2d 1109, 1112 (Me. 1998) (the camp may seek a declaratory judgment that the lien certificate is invalid under the state Declaratory Judgments Act, thus section 1983 and section 1988 were improper because an adequate state remedy existed).
______________________________________________________________________

Maryland

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, but very limited to litigation expenses for small businesses and nonprofit organizations under Md. Code State Gov't section 10-224 and to bad faith actions of opposing party.

    If Allowed, Are They Capped? Amount?

      Yes. $10,000 total litigation expenses.

    Standard for Awarding Attorney Fees

      An agency or court may award to a business or nonprofit organization reimbursement for expenses that the business or nonprofit organization reasonably incurs in connection with a contested case or civil action that is initiated against the business or nonprofit organization by an agency as part of an administrative or regulatory function, without substantial justification or in bad faith, and does not result in an adjudication.

    Authority/Statute

      Md. Code State Gov't section 10-224 (allowing up to $10,000 in attorney fees and litigation expenses for small businesses and nonprofit organizations); 2013 Maryland Court Order 0004 (C.O. 0004) (modifying Md. Gen. Rule 1-341 as of Jan. 1, 2014 to allow attorney fees if the court finds that the conduct of any party in maintaining or defending any proceeding was in bad faith or without substantial justification, the court, on motion by an adverse party, may require the offending party or the attorney advising the conduct or both of them to pay to the adverse party the costs of the proceeding and the reasonable expenses, including attorney fees, incurred by the adverse party in opposing it).

    Common Fund Doctrine State Tax Case?

      Yes. See Bowling v. Brown, 469 A.2d 896 (Md. 1984) (common fund attorney fees permitted where all of the taxpayers of a municipality were benefitted by a taxpayer's action resulting in reimbursement to the municipality of unauthorized disbursements); See also Smith v. Edwards, 418 A.2d 1227 (Md. Ct. Spec. App. 1980), rev'd on other grounds, 437 A.2d 221 (Md. 1981) (common fund attorney fees permitted where a successful taxpayer's action benefitted all taxpayers of a special tax district).

    Court Costs?

      Yes, but only to small businesses and nonprofits.

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Massachusetts

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, but very limited. Generally no before the appellate tax board except for appeals for local property tax abatements under Mass. Gen. Law ch. 59 section 64.

    If Allowed, Are They Capped? Amount?

      No, but any statutory fees are limited to a reasonableness standard. While the amount of attorney fees is discretionary, a trial judge should consider the nature of the case, time and labor required, amount of damages involved, result obtained, experience, reputation and ability of attorney, usual price for similar services by other attorneys in the area, and the amount of awards in similar cases. See Linthicum v. Archambault, 398 N.E.2d 482 (Mass. 1979).

    Standard for Awarding Attorney Fees

      The American rule, which makes parties responsible for their own attorney fees regardless of who prevails, does not apply when the fees are: (1) permitted by statute; (2) provided by contract or stipulation of the parties; or (3) recognized as the measure of compensable damages. See City of Revere v. Boston/Logan Airport Associates LLC., 443 F. Supp.2d 121 (D. Mass. 2006). The only potential tax challenges that may give rise to attorney fees is when there is a frivolous claim, defense, setoff, or counterclaim under M.G.L. ch. 231, sections 6E, 6F, and 6G (statute not applicable to the district court).

    Authority/Statute

      Mass. Gen. Law ch. 58A section 12 (witness fees and expenses of service of process may be taxed as costs against the unsuccessful party to the appeal at the discretion of the appellate tax board); Mass. Gen. Law ch. 58A section 12A (in limited situations, the whole or any part of the reasonable expense of the taxpayer incurred in a real estate assessment appeal); Mass. Gen. Law ch. 261 section 14 (in civil actions and proceedings which are instituted by, or in the name of, the commonwealth, and not at the relation, in behalf, or for the use, of a private person, the commonwealth shall be liable for costs as is an individual); Mass. Gen. Law ch. 261 section 1 (in civil actions the prevailing party shall recover his costs, except as otherwise provided); Mass. Gen. Law ch. 59 section 64 (the appellate tax board may award costs of an appeal for local property tax abatement to a prevailing party).

    Common Fund Doctrine State Tax Case?

      Yes. See Am. Trucking Associations Inc. v. Sec'y of Admin., 613 N.E.2d 95, 105 (Mass. 1993) (in an action brought by trucking companies alleging that fuel license fees and hazardous waste carrier fee violated the commerce clause, the court held that any recovery received by the plaintiff classes should be placed in a common fund (or funds) and that payment of attorney fees should be made from this fund).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See New England Legal Found. v. City of Boston, 670 N.E.2d 152, 161 (Mass. 1996) (NELF had adequate state procedural avenues to bring its federal law challenges to the property tax, and section 1983 would therefore not provide any relief. The denial of attorney fees was proper).
______________________________________________________________________

Michigan

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, both judicially and administratively. An action brought before either the court of claims or tax tribunal may request costs and attorney fees under Mich. Ct. R. 2.625(A)(2) and 2.114. Traditionally, tax cases rarely addressed demands for attorney fees, and costs are generally interpreted to be limited to court costs, such as filing and transcript fees. Beacon Enterprises Inc. v. Dept of Treasury, 2013 WL 6244687 (Dec. 3, 2013) (upholding an award of attorney fees against the DOR and, finding that the DOR's allegation that the tribunal lacked jurisdiction was frivolous); See also Schoeneckers Inc. v. Dep't. of Treasury, 2014 WL 308856 (Jan. 28, 2014).

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      Court may award reasonable attorney fees. A taxpayer whose suit is successful under the Headlee Amendment shall receive costs including attorney fees. See MCL section 600.308a(6); MSA 27A.308(1)(6); See also Macomb Cnty. Taxpayers Ass'n v. L'Anse Creuse Pub. Sch., 564 N.W.2d 457, 462 (Mich. 1997) (holding that taxpayers incurring attorney fees were awardable as part of the costs to which they are entitled under section 600.308a). Under MCL section 600.2591, the prevailing party is entitled to reasonable fees when the non-prevailing party asserts a frivolous action or defense in a civil action. See also Mich. Ct. R. 2.625(A)(2).

    Authority/Statute

      Mich. Const. art. IX, section 32 (any taxpayer has standing to bring suit in the court of appeals to enforce the Headlee Amendments, and if the suit is sustained, shall receive from the applicable unit of government his costs incurred in maintaining such suit); Bolt v. City of Lansing, 604 N.W.2d 745, 756-57 (Mich. 1999); MCL section 205.752(1) (costs may be awarded in the discretion of the tribunal); MCR 2.625(A)(2); MCR 2.114; Beacon Enterprises, Inc. v. Dept of Treasury, 2013 WL 6244687 (December 3, 2013); Schoeneckers Inc. v Dept of Treasury, 2014 WL 308856 (January 28, 2014); Macomb Cnty. Taxpayers Ass'n v. L'Anse Creuse Pub. Sch., 564 N.W.2d 457, 462 (1997) (holding that taxpayer attorney fees were awardable as part of the costs to which they are entitled under MCL section 600.308a); MCL section 600.2591 (if a court finds that a civil action or defense to a civil action was frivolous, the court that conducts the civil action shall award to the prevailing party reasonable costs and fees, including attorney fees, against the non-prevailing party and their attorney). To be frivolous one of the following must be true: (1) the party's primary purpose in initiating the action or asserting the defense was to harass, embarrass, or injure the prevailing party; (2) the party had no reasonable basis to believe that the facts underlying that party's legal position were in fact true; or (3) the party's legal position was devoid of arguable legal merit. A prevailing party is one that wins on the entire record for section 600.2591 purposes. See also Mich. Ct. R. 2.625(A)(2).

    Common Fund Doctrine State Tax Case?

      None specific to state tax disputes; however, Michigan has adopted the common fund doctrine. See In re Attorney Fees of Kelman, Loria, Dowing, Schneider & Simpson, 280 N.W.2d 457 (Mich. 1979) (applying the common fund doctrine to state workers compensation litigation).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See By Lo Oil Co. v. Dep't of Treasury, 703 N.W.2d 822 (Mich. Ct. App. 2005) (when adequate remedies are available under state law to aggrieved taxpayers, declaratory or injunctive relief is not available through federal district courts or state courts under section 1983).
______________________________________________________________________

Minnesota

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, both judicially and in tax court, but limited in both venues.

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      The prevailing party must be an unincorporated business, partnership, corporation, association, or organization with 500 or fewer employees and less than $7 million in annual revenues. No award or fees if circumstances make the award unjust. Taxpayer must show the state's position was not substantially justified.

    Authority/Statute

      Minn. Stat. Ann. section 15.471(6)(a); Minn. Stat. Ann. section 15.472 (if a prevailing party other than the state, in a civil action or contested case proceeding other than a tort action, brought by or against the state, shows that the position of the state was not substantially justified, the court or ALJ shall award fees and other expenses to the party unless special circumstances make an award unjust); Minn. Stat. Ann. section 271.19 (allowing costs and attorney fees authorized under section 15.472 in a tax court proceeding); Helgeson v. Minnesota Comr. of Rev., No. 7217 (Minn. Tax Ct. 2001) (individual taxpayer entitled to recovery of attorney fees in personal income tax dispute); Minn. R. 8610.0150 (in the tax court, a party may file a motion that costs and disbursements be granted to the prevailing party under Minn. Stat. chapter 271).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Missouri

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes for both administrative appeals and civil actions.

    If Allowed, Are They Capped? Amount?

      Yes. If claim brought under M.R.S. section 536.087, then limited to $75 per hour. If under M.R.S. section 136.315 (tax cases), then capped at $10,000.

    Standard for Awarding Attorney Fees

      Prevailing party entitled to reasonable fees and expenses. They will not be awarded where the state's position was substantially justified or where circumstances exist to make the award unjust.

    Authority/Statute

      Mo. Ann. Stat. section 137.073 (allowing attorney fees in class action suits involving challenges to property tax rates); Mo. Ann. Stat. section 136.315 (allowing attorney fees in administrative and court actions involving income tax or sales and use taxes); Mo. Ann. Stat. section 536.087 (allowing reasonable fees and expenses to a prevailing party in an agency proceeding or civil action against the state); Mo. Ann. Stat. section 536.085(4) ($75 per hour maximum); 1 CSR 15-3.560 (permitting litigation fees and expenses); Mo. Ann. Stat. section 136.315(1)(4) (defining "reasonable litigation expenses" as those actual expenses, not exceeding $10,000, that the administrative hearing commission or court finds were reasonably incurred in opposing the department's action, including, but not limited to, court costs, attorney fees and fees for expert and other witnesses); Greenbriar Hills Country Club v. Dir. of Revenue, 47 S.W.3d 346, 352 (Mo. 2001) (stating that both section 136.315 and section 536.087 provide remedies for taxpayers seeking attorney fees); Mo. Ann. Stat. section 138.430 (if an assessor classifies real property under a classification that is contrary to or in conflict with a determination by the state tax commission or a court of competent jurisdiction, the taxpayer shall be awarded costs of appeal and reasonable attorney fees).

    Common Fund Doctrine State Tax Case?

      Affirmatively reject. See Lett v. City of St. Louis, 24 S.W.3d 157, 163 (Mo. Ct. App. 2000) (explicitly disallowing taxpayers to collect attorney fees from a fund which taxpayers contend consists of money they should have paid to the city as earnings taxes for the period of time from October 1993 through June 1996, stating "we discuss taxpayers' claim for attorneys' fees under the catalyst theory, without deciding that such a theory is recognized by Missouri courts and without adopting such a theory in the present action").

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Mississippi

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, but very limited.

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      Court must find that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification; or that the action, or any claim or defense asserted, was interposed for delay or harassment; or find that an attorney or party unnecessarily expanded the proceedings by other improper conduct including, but not limited to, abuse of discovery procedures under the Mississippi Rules of Civil Procedure.

    Authority/Statute

      Miss. Code Ann. section 11-55-5 (attorney fees shall be awarded in addition to costs when a party brought an action, or asserted any claim or defense, that is without substantial justification, or the action or claim was interposed for delay or harassment, or an attorney or party unnecessarily expanded the proceedings by other improper conduct including, but not limited to, abuse of discovery procedures available under the Mississippi Rules of Civil Procedure); Miss. Code Ann. section 27-77-7(4) (disallowing attorney fees in an appeal before the board of tax appeals); Miss. Code Ann. section 19-3-41(4) (if a county uses its employees to collect any type of delinquent payment then the county may charge an additional fee for collection provided the payment has been delinquent for 90 days. The collection fee may not exceed 25 percent of the delinquent payment if the collection is made within this state, or 50 percent if the collection is made outside this state); Miss. Code Ann. section 9-1-41 (the court shall not require the party seeking fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court's own opinion based on experience and observation; provided, however, a party may place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence); Miss. R. Prof. Cond. Rule 1.5 (limiting attorney fees awards to a reasonable amount and listing factors for determining reasonableness).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See Commonwealth Brands Inc. v. Morgan, 110 So.3d 752 (Miss. 2013) (to preclude an action challenging the tax under section 1983 in state court, the state law must satisfy minimal procedural criteria; it must provide the party with a full hearing and judicial determination to raise any and all constitutional objections to the tax).
______________________________________________________________________

Montana

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      State has pursued a claim that was frivolous or brought in bad faith.

    Authority/Statute

      Mont. Code Ann. section 15-1-222(8) (granting taxpayers the right to seek attorney fees and costs under Mont. Code Ann. section 25-10-711 for frivolous or bad faith lawsuits instituted by the DOR); Mont. Code Ann. section 25-10-711 (permits the opposing party "in any civil action brought by or against the state, a political subdivision, or an agency of the state or political subdivision, to recover costs and reasonable attorney fees" where the state has pursued a claim that was frivolous or brought in bad faith).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Nebraska

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, but not in tax equalization review commission cases.

    If Allowed, Are They Capped? Amount?

      Yes. Limited to claims of $4,000 or less under Neb. Rev. Stat. section 25-1801.

    Standard for Awarding Attorney Fees

      Unless otherwise provided by law, the court having jurisdiction over a civil action brought by the state or an action for judicial review brought against the state under the APA shall award attorney fees and other expenses to the prevailing party (limited to certain requirements under Neb. Rev. Stat. section 25-1804) unless the prevailing party is the state. The court shall not award fees and expenses if it finds that the state's position was substantially justified.

    Authority/Statute

      Neb. Rev. Stat. section F3525-1708 (where not otherwise provided by this and other statutes, costs shall be allowed to the plaintiff, except as waived or released in writing by the plaintiff, upon a voluntary payment to the plaintiff after the action is filed but before judgment, or upon a judgment in favor of the plaintiff, in actions for the recovery of money only or for the recovery of specific real or personal property); Neb. Rev. Stat. section 25-1803 (unless otherwise provided by law, the court having jurisdiction over a civil action brought by the state or an action for judicial review brought against the state under the APA shall award attorney fees and other expenses to the prevailing party unless the prevailing party is the state, except that the court shall not award fees and expenses if it finds that the position of the state was substantially justified); Neb. Rev. Stat. section 25-1804 (fees and other expenses shall be awarded as provided only to those prevailing parties who are natural persons or a sole proprietorship, partnership, limited liability company, corporation, association, or public or private organization that had an average daily employment of 50 persons or fewer for the 12 months preceding the filing of the action, and whose gross receipts for the 12-month period preceding the filing of the action was $2 million or less, or whose average gross receipts for the three 12-month periods preceding the filing of such appeal under the APA was $2 million or less, whichever amount is greater); Neb. Rev. Stat. section 77-5016(1) (in a tax equalization review proceeding, fees and costs of a court reporter shall be paid by the party against whom a final decision is rendered, and all other costs shall be allocated as the commission may determine); Neb. Rev. Stat. section 77-5016(12) (in tax equalization review proceedings, costs of any appeal, including the costs of witnesses, may be taxed by the commission as it deems just, unless the appellant is the county assessor or county clerk or the appellant is the tax commissioner or property tax administrator); 442 Neb. Admin. Code section 2-001 (attorney fees are not a part of costs which may be allowed by the commission).

    Common Fund Doctrine State Tax Case?

      Affirmatively reject. See Dennis v. State, 451 N.W.2d 676 (Neb. 1990), rev'd on other grounds sub nom. Dennis v. Higgins, 498 U.S. 439 (1991) (although the trial court, in an action successfully challenging tax statutes on commerce clause grounds, improperly awarded attorney fees under common fund theory, the trial court correctly determined that award should not be made out of total amount of taxes subject to refund; there was no evidence of what the total amount would be and the trial court had no jurisdiction over other persons who may have paid the invalid taxes or any way of knowing whether the amounts would be subject to refund if claims were made. Additionally, the trial court could not award attorney fees to plaintiffs who successfully challenged tax statutes, insofar as the state had not waived its sovereign immunity as to attorney fees).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See Francis v. City of Columbus, 676 N.W.2d 346 (Neb. 2004) (holding that the trial court could not entertain section 1983 claims of taxpayers where the state provided taxpayers at least two adequate methods for challenging a special tax assessment for street improvements).
______________________________________________________________________

Nevada

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, in courts, but subject to limits. No, before Nevada Tax Commission.

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      The court may make an allowance of attorney fees to a prevailing party if: (a) the prevailing party has not recovered more than $20,000; or (b) when the court finds that the claim, counterclaim, cross-claim, or third-party complaint or defense of the opposing party was brought or maintained without reasonable grounds or to harass the prevailing party. The court shall liberally construe the provisions of this paragraph in favor of awarding attorney fees in all appropriate situations.

    Authority/Statute

      Nev. Rev. Stat. Ann. section 18.010 (the compensation of an attorney and counselor for his services is governed by agreement, express or implied, which is not restrained by law. In addition to the cases where an allowance is authorized by specific statute, the court may make an allowance of attorney fees to a prevailing party when the party has not recovered more than $20,000 or without regard to the recovery sought, when the court finds that the claim, counterclaim, cross-claim, or third-party complaint or defense of the opposing party was brought or maintained without reasonable ground or to harass the prevailing party); Nev. Rev. Stat. Ann. section 17.115 (attorney fees may be granted to a party that makes an offer of judgment that is refused and subsequently obtains a result more favorable than the offer); Nev. Rev. Stat. Ann. section 18.020(3) (costs must be allowed to the prevailing party against any adverse party against whom judgment is rendered in an action for the recovery of money or damages, where the plaintiff seeks to recover more than $2,500); Nev. Rev. Stat. Ann. section 18.020(5) (costs allowed to prevailing party in an action which involves the title or boundaries of real estate, or the legality of any tax, impost, assessment, toll, or municipal fine, including the costs accrued in the action if originally commenced in a justice court); Nev. Rev. Stat. Ann. section 69.030 (prevailing party allowed attorney fees to be taxed as costs in justice court (limited jurisdiction court: civil claims less than $10,000 only)); Nev. Rev. Stat. Ann. section 69.050 (in the event of an appeal, the district court is authorized to award to the prevailing party all costs allowed by law and also reasonable attorney fees to be fixed and allowed by the district court for all services rendered in behalf of the prevailing party); Nev. Rev. Stat. Ann. section 18.150 (payment of costs and attorney fees by state and county is to come out of their treasuries respectively).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

New Hampshire

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      Reasonable costs and attorney fees to a prevailing party showing the other party's position was unjustified.

    Authority/Statute

      N.H. Rev. Stat. Ann. section 21-J:28-b (the board or court may award reasonable costs and attorney fees to the prevailing party provided the prevailing party shows substantially unjustified action); N.H. Rev. Stat. Ann. section 71-B:9 (before the board of tax and land appeals, costs and attorney fees may be taxed as in the superior court); N.H. Super. Ct. Civ. Rule 11(d) (the court may assess reasonable costs, including reasonable counsel fees, against any party whose frivolous or unreasonable conduct makes necessary the filing of or hearing on any motion); N.H. Rev. Stat. Ann. section 541-B:18 (under the claims against the state statute, no attorney representing a claimant shall charge or collect fees for legal services rendered to the claimant unless the fees have been approved by the board or the superior court. In determining the amount of allowable fees, the board or the superior court shall consider, among other things, the nature, length, and complexity of the services performed, the usual and customary charge for work of like kind, and the benefits resulting to the claimant as a result of the legal services performed).

    Common Fund Doctrine State Tax Case?

      No common fund but there are several substantial benefit doctrine cases; See Mooney v. City of Laconia, 573 A.2d 447, 450 (N.H. 1990) (upholding the trial court's order that the city pay the plaintiff's attorney fees. The plaintiff conferred a substantial benefit on city building permit applicants, citizens, and taxpayers by bearing the burden of challenging an invalid special assessment; therefore, his attorney fees ought to be shifted to the city); See also Irwin Marine Inc. v. Blizzard Inc., 490 A.2d 786, 791 (N.H. 1985); But see Private Truck Council of Am. Inc. v. State, 517 A.2d 1150, 1157 (N.H. 1986) (holding that taxpayers did not have a common law right to attorney fees under the common fund doctrine because the action had not been properly certified as a class action and the plaintiffs did not demonstrate any bad faith on the part of the state).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

New Jersey

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes in municipal, superior, and tax court.

    If Allowed, Are They Capped? Amount?

      Yes. Maximum litigation costs of $15,000 and attorney fee rate of $75 per hour unless a special determination is made by the court.

    Standard for Awarding Attorney Fees

      A frivilous claim or a taxpayer in a court proceeding in connection with the determination, collection, or refund of any tax, penalty or interest that establishes the state's position was without reasonable basis in fact or law. See NJSA section 2A:15-59.1.

    Authority/Statute

      N.J. Stat. Ann. section 2A:15-59.1 (a party who prevails in a civil action may be awarded reasonable litigation costs and attorney fees, if a complaint, counterclaim, cross-claim, or defense of the non-prevailing person was frivolous); N.J. Stat. Ann. section 54:51A-22 (a prevailing taxpayer that establishes the state's position was without reasonable basis, in a court proceeding in connection with the determination or refund of tax, may be awarded reasonable litigation costs, not to exceed $15,000 and $75 per hour, unless the court finds the existence of a special factor. If proceedings have been instituted or maintained by the taxpayer primarily for delay, the taxpayer's position is without grounds, or the taxpayer unreasonably failed to pursue administrative remedies, the state may be awarded reasonable litigation costs, not to exceed $15,000); N.J. Stat. Ann. section 22A:2-42 (the clerk of the superior court shall include in the costs against the judgment debtor, a fee to the attorney of the prevailing party, of 5 percent of the first $500 of the judgment, and 2 percent of any excess thereof); N.J. Stat. Ann. section 22A:2-43 (in civil causes, in municipal courts, all filing fees and other charges; all fees of constables, jurors, attorneys, and appraisers; and all costs shall be the same as are provided by law for similar services in the superior court); Tax Court Rule 8:9-2 (taxed costs shall not be allowed. Out-of-pocket costs may be allowed in special cases at the discretion of the court); N.J. Ct. R. 1:10-3 (the court in its discretion may make an allowance for attorney fees to be paid by any party to the action to a party accorded relief); Park 50 Grp. LLC v. Weehawken Twp., 002507-2007 (N.J. Tax Ct. Nov. 2, 2011) (stating that the tax court may award both counsel fees and sanctions on a motion brought under R. 1:10-3); See also Trisun Corp. v. Town of W. New York, 775 A.2d 642 (App. Div. 2001); N.J. Stat. Ann. section 22A:2-8 (a party to whom costs are awarded is entitled to include legal fees for witnesses, mileage, deposition costs, legal fees for publication, fees for service or process, filing and docketing fees, and charges paid to the court); N.J. Ct. R. 4:43-2(a)(c) (in civil court proceedings, attorney fees or collection charges can only be included when the contract forming the basis of the lawsuit or a statute provides for such fees); N.J. Ct. R. 4:42-9 (in superior court and tax court, no fee for legal services except as provided by statute).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See General Motors Corp. v. City of Linden, 671 A.3d 560 (N.J. 1996) (state supreme court interpreted adequate for section 1983 purposes to mean that the state remedy need only satisfy "minimal procedural criteria" and that the state's remedy need not be identical to section 1983 remedies, comparable to federal remedies, the best remedy available, or the most convenient remedy possible); See also Gen. Engines Co. Inc. v. Dir., Div. of Taxation, 23 N.J. Tax 515 (2007) (holding there were adequate procedural remedies for taxpayer's constitutional challenge that precluded section 1983 relief).
______________________________________________________________________

New Mexico

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes

    If Allowed, Are They Capped? Amount?

      Fees awarded N.M.R.S. section 7-1-29.1 shall not exceed the lesser of 20 percent of the amount of settlement or judgment or $50,000. Fees awarded by common law or other statutory provisions are not capped.

    Standard for Awarding Attorney Fees

      Prevailing taxpayers permitted to recover reasonable litigation costs and fees where the DOR is unable to show its position was based on a reasonable application of the law. The department will be presumed not to have applied the law reasonably if: (1) the department did not follow an applicable published guidance in the proceeding, or (2) the assessment giving rise to the proceeding is not supported by substantial evidence at the time it was issued.

    Authority/Statute

      N.M. Stat. Ann. section 7-1-25 (if the secretary of revenue appeals a decision of an administrative hearing officer and the court's decision, from which either no appeal is taken or no appeal may be taken, upholds the decision, the court shall award reasonable attorney fees to the protestant. If the decision upholds the hearing officer's decision only in part, the award shall be limited to reasonable attorney fees associated with the portion upheld); N.M. Stat. Ann. section 7-1-29.1 (in any administrative or court proceeding that is brought by or against the taxpayer in connection with the determination, collection, or refund of any tax, interest, or penalty for a tax governed by the provisions of the Tax Administration Act, the taxpayer shall be awarded a judgment or a settlement for reasonable administrative costs incurred in connection with an administrative proceeding with the department or reasonable litigation costs incurred in connection with a court proceeding, if the taxpayer is the prevailing party. The taxpayer shall not be treated as the prevailing party if the department establishes that the position of the department in the proceeding was based upon a reasonable application of the law to the facts of the case). If litigation costs are awarded under this section, the taxpayer may not receive an award of attorney fees under N.M. Stat. Ann. section 7-1-25(D); New Mexico Taxn. and Rev. Dept. v. Whitener, 869 P.2d 130 (N.M. Ct. App.1993) (awarding fees to taxpayer following unsuccessful appeal by the taxation and revenue department); State ex rel. King v. Advantageous Cmty. Servs. LLC, 31,782, 2014 WL 1779440 (N.M. Ct. App. Apr. 28, 2014) (the supreme court has ruled that a state court has inherent authority, independent of any statute or rule, to award attorney fees in order to vindicate its judicial authority and compensate the prevailing party for expenses incurred as a result of frivolous or vexatious litigation). See also State ex rel. New Mexico Highway & Transportation Department v. Baca, 896 P.2d 1148 (N.M. 1995).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See Ramah Navajo Sch. Bd. Inc. v. New Mexico Taxation & Revenue Dep't, 977 P.2d 1021 (N.M. 1999) (Native American school board, as assignee of gasoline distributors, sought refund of state gasoline taxes assessed against the distributors and was precluded from section 1983 relief on the grounds that adequate state remedy was available in accord with National Private Truck Council).
______________________________________________________________________

New York

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, both judicially and administratively, in class actions (N.Y. C.P.L.R. section 909), when the commissioner is a party (N.Y. Tax Law section 3030), or the state is a party and eligible under NY EAJA (N.Y. C.P.L.R. section 8601 et seq). Not allowed in the court of claims (N.Y. Ct. Cl. Act section 27) or tax appeals tribunal unless under EAJA (N.Y. Tax Law section 2016).

    If Allowed, Are They Capped? Amount?

      Yes under N.Y. Tax Law section 3030. Fees are capped at $75 per hour unless it can be shown that a special factor exists justifying a higher rate (such as the limited availability of qualified attorneys) See N.Y. Tax Law section 3030(c)(1)(B)(iii). But see N.Y. C.P.R.L. section 8601 (implementing a reasonableness standard).

    Standard for Awarding Attorney Fees

      Under N.Y. Tax Law section 3030, in order to be awarded costs a taxpayer must be the prevailing party and the division's position must not be substantially justified. The division bears the burden of proof to show that its position is substantially justified by a preponderance of the evidence. To be a prevailing party, an individual taxpayer must have a net worth of $2 million or less at the time the civil action was filed or be an owner of an entity with 500 or fewer employees and a net worth of $7 million or less (nonprofit organizations do not have to abide by these limits). Under N.Y. C.P.R.L. section 8601 et seq., a court shall award to a prevailing party, other than the state, fees and other expenses incurred by the party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust. A prevailing party for purposes of the statute is limited to individuals with a net worth of $50,000 (not including primary residence) or owners of business entities with 100 or fewer employees (nonprofit organizations excluded).

    Authority/Statute

      N.Y. Tax Law section 3030 permits a discretionary award of attorney fees to the prevailing party in any administrative or court proceeding in which the commissioner is a party and which involves the determination, collection, or refund of any tax. A prevailing party is not entitled to recovery of attorney fees if the commissioner satisfies his burden of proving, by a preponderance of the evidence, that his position was substantially justified; N.Y. Tax Law section 2016 (the tax appeal tribunal adopts N.Y. C.P.L.R 7800 rules, which includes attorney fees or costs to the extent allowed in section 8600); N.Y. Comp. Codes R. & Regs. tit. 20, section 3000.5 (before the tax appeals tribunal, motions for costs or disbursements or motions related to discovery procedures as provided for in the C.P.L.R. will not be entertained); N.Y. C.P.L.R. 8601 et seq. (under the EAJA, a court shall award to a prevailing party, other than the state, fees and other expenses incurred in a civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust. The EAJA only applies to prevailing parties that are individuals with a net worth of less than $50,000, business entities with less than 100 employees, or nonprofit organizations); N.Y. C.P.L.R. 909 (if a judgment in an action maintained as a class action is rendered in favor of the class, the court in its discretion may award attorney fees to the representatives of the class or to any other person that the court finds has acted to benefit the class based on the reasonable value of legal services rendered and, if justice requires, allow recovery of the amount awarded from the opponent of the class); N.Y. Ct. Cl. Act section 27 (counsel or attorney fees shall not be allowed by the court of claims to any party).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See Tri-State Christian T.V. Inc. v. Dillenberg, 689 N.Y.S.2d 386, 387 (N.Y. Sup. Ct. 1999) aff'd, 275 A.D.2d 993 (2000) (taxpayers challenged property tax assessment on religious grounds and were denied section 1983 jurisdiction because under New York law an adequate remedy is provided in the form of refunds).
______________________________________________________________________

North Carolina

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      The court has discretion in certain actions to award attorney fees to a party prevailing over a state agency if the agency lacked substantial justification for its actions. In any civil action, the court may award attorney fees to the prevailing party if the court finds the complete absence of justiciable issue of either fact or law in any of the pleadings of the losing party.

    Authority/Statute

      N.C. Gen. Stat. section 6-19.1 (attorney fees to parties appealing or defending against agency decision); N.C. Gen. Stat. section 150B-33(b)(11) (giving ALJs the ability to order the assessment of reasonable attorney fees and witness fees against the state agency involved in contested cases where the ALJ finds the agency substantially prejudiced the petitioner's rights and acted arbitrarily or capriciously, or under chapter 126 where the ALJ finds discrimination, harassment, or orders reinstatement or back pay); N.C. Gen. Stat. section 6-18 (costs are limited to very specific causes of action, not including tax matters); N.C. Gen. Stat. Ann. section 6-21.5 (in any civil action, special proceeding, or estate or trust proceeding, the court, upon motion of the prevailing party, may award a reasonable attorney fee to the prevailing party if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party in any pleading); N.C. Gen. Stat. Ann. section 7A-305(d)(3) (in the district and superior courts, counsel fees are allowed as provided by law); N.C. Gen. Stat. section 6-13 et seq. (the state may be liable for costs in civil actions by the state, civil action by and against state officers, actions by the state for private persons, appeals to federal courts, and connection with federal litigation arising out of state cases).

    Common Fund Doctrine State Tax Case?

      Yes. See Bailey v. State, 500 S.E.2d 54 (N.C. 1998) (common fund award of attorney fees was proper where state and local government retirees brought a class action challenging the constitutionality of legislation placing a cap on the tax exemption for state and local government employee retirement benefits).

    Court Costs?

      No

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Awarding. See Edward Valves Inc. v. Wake Cnty., 471 S.E.2d 342 (N.C. 1996) (taxpayer could pursue section 1983 remedies on its equal protection claim in addition to state law remedies).
______________________________________________________________________

North Dakota

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      Parties prevailing in civil judicial proceedings against state administrative agencies when the agency acted without substantial justification, frivolous claim for relief.

    Authority/Statute

      N.D. Cent. Code section 28-32-21.1 (parties prevailing in civil judicial proceedings against state administrative agencies are entitled to an award of reasonable attorney fees; however, a fee award is not appropriate in the case of a final agency order unless the court determines that the agency acted without substantial justification); N.D. Cent. Code Ann. section 28-32-50 (in any civil judicial proceeding involving as adverse parties an administrative agency and a party not an administrative agency or an agent of an administrative agency, the court must award the party not an administrative agency reasonable attorney fees and costs if the court finds in favor of that party and, in the case of a final agency order, determines that the administrative agency acted without substantial justification); N.D. Cent. Code section 28-26-01 (in non-administrative actions attorney fees are governed by agreement between the parties except when the court finds one party's claim for relief to be frivolous); N.D. Cent. Code section 28-26-10 (outside the context of real property and other specific nontax actions, costs may be allowed for or against either party in the discretion of the court).

    Common Fund Doctrine State Tax Case?

      Affirmatively reject. See Mann v. N. Dakota Tax Com'r, 736 N.W.2d 464, 477 (N.D. 2007) (concluding that there is no statutory basis to award attorney fees and the common fund doctrine does not apply to Native Americans seeking a refund for state motor vehicle fuel tax on fuel they purchased on their reservations).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Ohio

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes in court. No before the board of tax appeals unless the non-prevailing party is disobedient to the BTA Rules of Practice and Procedure.

    If Allowed, Are They Capped? Amount?

      Generally no. Under the state EAJA, fees are limited to $75 per hour unless a higher rate is approved by the court.

    Standard for Awarding Attorney Fees

      Under section 5703.54 the Department of Taxation must frivolously disregard specific chapters of the RC or rules derived from those provisions; before the BTA, only allowed when a party fails to comply with BTA Rules of Practice and Procedure; fees also limited by an excessive standard. See Ohio RPC Rule 1.5.

    Authority/Statute

      Ohio Rev. Code Ann. section 5703.54 (a taxpayer aggrieved by an action of an employee of the department may bring an action for damages if the employee frivolously disregards certain chapters of the revised code or rules of the tax commissioner, the act occurred with respect to an audit, assessment, or collection proceedings the employee did not act manifestly outside the scope of his office or employment and did not act with malicious purpose, in bad faith, or in a wanton or reckless manner); Basic Distribution Corp. v. Ohio Dep't of Taxation, 762 N.E.2d 979, 986 (Ohio 2002) (in order for a claim to be actionable, the department must "pay no attention to" a statute or rule, and its disregard must be unsupportable in good faith or must maliciously injure or serve merely to harass the taxpayer, which excludes a merely erroneous interpretation of a statute or rule; an action under section 5703.54 does not require exhaustion of the administrative remedies); Ohio Rev. Code Ann. section 2335.39 (fees awardable to an eligible prevailing party if requested within 30 days of judgment. Eligible parties include an individual whose net worth does not exceeded $1 million; a sole owner of an unincorporated business, a partnership, corporation, association, or organization with a net worth not exceeding $5 million, except that a nonprofit organization shall not be excluded because of its net worth; a sole owner of an unincorporated business, a partnership, corporation, association, or organization that employed not more than 500 persons at the time the action or appeal was filed. Fees shall not exceed $75 per hour or a higher hourly fee approved by the court); Costa v. Ohio Bur. of Emp. Serv., 578 N.E.2d 848 (Ohio Ct. App. 1989) (attorney fees are awardable to a prevailing eligible party under RC 2335.39 only when the state initiates the matter in controversy in a court rather than in an administrative proceeding); Ohio Civ. R. 54(D) (except when express provision is made either in a statute or rules, costs shall be allowed unless the court otherwise directs); State, ex rel. Gravill v. Fuerst, 492 N.E.2d 809 (Ohio 1986) (Civ R 54(D) is not a grant of a right to costs or attorney fees); Ohio Rev. Code section 5717.14(A)(7) (failure to comply with BTA rules may result in the payment of reasonable expenses including attorney fees, and costs incurred by the board from the disobedient party or the attorney advising such party).

    Common Fund Doctrine State Tax Case?

      Yes. See Rocca v. Wilke, 371 N.E.2d 223 (Ohio Ct. App. 1977) (in taxpayers' class action against county auditor and treasurer and others to recover illegally retained taxes, plaintiffs were properly awarded attorney fees out of common fund consisting of tax monies to be refunded or credited to owners of real estate in county, but court could not include refunds or credits with respect to real estate in any other county).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See PPG Indus. Inc. v. Tracy, 659 N.E.2d 1250, 1252 (Ohio 1996) (because Ohio provides an appellate procedure to determine constitutional claims, PPG could not receive attorney fees under section 1988); See also Phillips Electronics North American Corp. v. Tracy, BTA 93-K-825, 1996 WL 368488 (holding the board of tax appeals has no authority to award a party attorney fees, costs, and expenses under sections 1983 and 1988).
______________________________________________________________________

Oklahoma

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      Reasonable attorney fees allowed in taxpayer refund actions where the court determines the position of the tax commission was not substantially justified; any party aggrieved by a final agency order may recover reasonable attorney fees if the proceeding was frivolously brought; challenges to assessments where the taxpayer prevails and the tax commission is not substantially justified allow reasonable attorney fees if certain interstate/federal claims are made.

    Authority/Statute

      Okla. Stat. Ann. tit. 12, section 696.4 (a judgment, decree, or appealable order may provide for costs, attorney fees, or both); Okla. Stat. Ann. tit. 75, section 318 (any party aggrieved by a final agency order may be entitled to recover court costs, witness fees, and reasonable attorney fees if the court determines that the proceeding brought by the agency is frivolous); See also Okla. Stat. Ann. tit. 12, section 941 (defendant in any civil action brought by any state agency, board, commission, department, authority, or bureau authorized to make rules or formulate orders shall be entitled to recover costs, witness fees, and reasonable attorney fees if the court determines that the action was brought without reasonable basis or is frivolous); Okla.Stat. Ann. tit. 68, section 226(b) (if the taxpayer challenges an assessment of taxes and the court determines the position of the tax commission was not substantially justified, the court shall award reasonable attorney fees, expenses of expert witnesses, and costs necessary for the preparation of the taxpayer's case. The section shall be construed to provide a legal remedy in the state or federal courts only when the taxes are claimed to be an unlawful burden on interstate commerce, or the collection thereof violative of any congressional act or provision of the federal constitution, or in cases where jurisdiction is vested in any of the courts of the United States); Okla. Stat. Ann. tit. 68, section 207(b) (the fees of witnesses required by the tax commission to attend any hearing shall be the same as those for district courts. Such fees shall be paid in the same manner as other expenses incident to the administration of this article or of any state tax law); Okla. Stat. Ann. tit. 20, section 15.1 (on any appeal to the supreme court, the prevailing party may petition the court for additional attorney fees. In the event the supreme court or its designee finds that the appeal is without merit, any additional fee may be taxed as costs); Okla. Stat. Ann. tit. 12, section 2023 (as amended by HB 1013 (Sept. 2013)) (in a certified class action, the court may award reasonable attorney fees and nontaxable costs that are authorized by law or by the parties' agreement); Okla. Admin. Code section 710:1-5 (OTC Rules of Practice and Procedure, which contain no mention of attorney fees).

    Common Fund Doctrine State Tax Case?

      Affirmatively reject. See Oklahoma Tax Comm'n v. Ricks, 885 P.2d 1336, 1341 (Okla. 1994) (where a final order merely increases the taxing authority's liability, no segregable fund results from which attorney fees may be awarded via common fund doctrine).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See Liddell v. Bd. of Comm'rs of Cnty. of Cleveland ex rel. Bd. of Equalization of Cnty. of Cleveland, 46 P.3d 715, 717 (Okla. Civ. App. 2002) (holding plaintiff was not entitled to declaratory or injunctive relief in this action under section 1983 for alleged due process violations in conjunction with National Private Truck Council).
______________________________________________________________________

Oregon

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      The court has discretion to award attorney fees to a taxpayer in a successful action for a refund of personal income tax, gift and estate tax, ad valorem property tax, exemptions, special assessments, or omitted property tax liability. The award of reasonable attorney fees and expenses is permitted in state court actions and administrative proceedings involving state agencies if the state agency acted without a reasonable basis in fact or law but not if the position of the agency was substantially justified or if special circumstances exist that would make an award unjust. Courts are required to award reasonable attorney fees to a party against whom a claim, defense, or ground for appeal lacks an objectively reasonable basis.

    Authority/Statute

      OR Rules Civ. Proc. 68 (broadly allowing attorney fees and costs to prevailing parties unless specifically excluded by statute); Oregon Tax Court Reg. Div. Rule 68(B)-(C) (allowing for attorney fees and costs and disbursements); Ore. Rev. Stat. section 305.490 (giving the court discretion to award attorney fees to a taxpayer in a successful action for a refund. The provision is applicable in cases involving personal income tax, gift and estate tax, ad valorem property tax, exemptions, special assessments, or omitted property tax liability); Ore. Rev. Stat. section 182.090 (permitting the award of reasonable attorney fees and expenses in state court actions involving state agencies if the state agency acted without a reasonable basis in fact or law. No fee award is proper if the position of the agency was substantially justified or if special circumstances exist that would make an award unjust); Ore. Rev. Stat. section 183.497 (like section 182.090 but in an administrative context); Ore. Rev. Stat. section 20.105 (the Oregon circuit court, tax court, court of appeals, or supreme court are required to award reasonable attorney fees to a party against whom a claim, defense, or ground for appeal lacks an objectively reasonable basis. A court may apply the sanction under the statute against the taxpayer or the state); Or. Rev. Stat. Ann. section 20.075 (factors in determining whether to award attorney fees if available); Maginnis v. Oregon Dept. of Rev., No. TC 4310 (Or. Tax Ct. 1999) (attorney overhead expenses are usually not recoverable, except for expenses separately billed); Oregon Dept. of Rev. v. Rakocy, 15 Or. Tax 389 (Or. Tax Ct. 2001) (concluding it is generally inappropriate to award attorney fees in an appeal where there is no factual dispute and the taxpayer loses on the legal issue); Gary Alan Clark v. Oregon Dept. of Rev., 16 Or. Tax 51 (Or. Tax Ct. 2002) (DOR entitled to reasonable attorney fees under Or. Rev. Stat. section 20.105(1) where taxpayer's claim had no objectively reasonable basis).

    Common Fund Doctrine State Tax Case?

      Yes, but not specifically under common fund doctrine. Oregon courts often award equitable attorney fees to prevailing parties that vindicate an important constitutional right; See Swett v. Bradbury, 67 P.3d 391, 397 (Or. 2003) (concluding that the former "proceeding in equity" criterion is not useful for determining whether to award attorney fees especially if it is read to require a specific prayer for, or the actual award of, equitable relief); See also Gugler v. Baker Co. Ed. Serv. Dist. (Gugler III), 754 P.2d 903 (Or. 1988) (denying fees because the plaintiffs had not prevailed in their action); Lewis v. Dept. of Rev., 653 P.2d 1265 (Or. 1982) (denying fees, in part, because the court did not grant the relief sought by the plaintiff); See also Dennehy v. City of Gresham, 841 P.2d 633 (Or. 1992) (in filing the action, the party requesting attorney fees must have been seeking to "vindicat[e] an important constitutional right applying to all citizens without any gain peculiar to himself"); But see Vannatta v. Keisling, 931 P.2d 770 (Or. 1997) (denying fees for vindicating "individualized and different interests"); See also Dennehy v. Dept. of Rev., 781 P.2d 346 (Or. 1989) (denying fees where "any pecuniary or other special interest of his own aside from that shared with the public at large" existed); Lewis v. Beyer, 262 Or. App. 486 (2014) (plaintiffs denied attorney fees because they did not specifically claim the vindication of a constitutional right).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Pennsylvania

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, but not in challenges brought before the board of finance and review.

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      State action must be "dilatory, obdurate, or vexatious conduct" under 42 Pa. Cons. Stat. section 2503(7) or "arbitrary, vexatious, or in bad faith" under section 2503(9). Generally this requires the exemptions, exclusions, or defenses asserted by the agency in its final determination to not be based on a reasonable interpretation of law.

    Authority/Statute

      42 Pa. Cons. Stat. section 2503 (counsel fees allowed only under certain circumstances including when the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith); 42 Pa. Cons. Stat. section 1726 (attorney fees are not an item of taxable costs except as authorized by section 2503. The prevailing party should recover his costs from the unsuccessful litigant except where the: (1) costs relate to the existence, possession, or disposition of a fund and the costs should be borne by the fund; (2) the issue is a public question or where the applicable law is uncertain and the purpose of the litigants is primarily to clarify the law; or (3) application of the rule would work substantial injustice); Norris v. Commonwealth, 634 A.2d 673 (Pa. 1993) (refusing to grant attorney fees after successful tax challenge but implying the department could be liable for a taxpayer's attorney fees if its conduct fell within the scope of section 2503); Pa. R.A.P. Rule 2744 ("in addition to other costs allowable by general rule or Act of Assembly, an appellate court may award as further costs damages as may be just, including (1) a reasonable counsel fee . . . if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule"); Newbrey v. Township and School District of Upper St. Clair, 710 A.2d 96 (Pa. Cmwlth. 1998), rev'd, 561 Pa. 345, 750 A.2d 304 (2000) (imposing counsel fees on a local taxing authority because the tax authority's appeal was vexatious as it had previously lost a different appeal that had been premised on the exact same issue); Independence Blue Cross v. Workers' Compensation Appeal Board, 820 A.2d 868, 874 (Pa. 2003) (the board of finance and review and other administrative tribunals cannot award counsel fees because only components of the "unified judicial system" may award counsel fees under section 2503); See also Norris v. Commonwealth, 634 A.2d 673 (Pa. 1993) ("this Court has defined 'matter' in section 2503(7) to mean a matter before a court of the unified judicial system of the Commonwealth" and other costs such as reproduction costs for briefs may be awarded); components of a "unified judicial system" are listed at 42 Pa. Cons. Stat. section 301(1)-(9) (administrative tribunals are not included).

    Common Fund Doctrine State Tax Case?

      Yes. Verrichia v. Com., Dep't of Revenue, 639 A.2d 957, 961 (Pa. Cmwlth. 1994) (reversing a common fund award of attorney fees to taxpayers by trial court on other grounds); See also Matter of Estate of Neiss, 560 A.2d 842 (Pa. Cmwlth. 1989) (refusing to award counsel fees to a taxpayer based on the common fund doctrine because the fund from which the fees would be paid -- the state treasury -- was not the type of fund covered by the doctrine).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See Kowenhoven v. Cnty. of Allegheny, 901 A.2d 1003 (Pa. 2006) (taxpayers challenging procedures utilized by county assessment appeal board had adequate state law remedy through declaratory judgment action and trial court's equity jurisdiction that precluded section 1983 claim for money damages); Brown v. Montgomery Cnty., 918 A.2d 802 (Pa. Commw. Ct. 2007) (adequate remedy to a taxpayer, that would preclude the use of section 1983 as a vehicle to challenge state taxes, need not include a predeprivation process, such as an injunction, as long as postdeprivation relief in the form of a refund is available); Murtagh v. Cnty. of Berks, 715 A.2d 548, 552 (Pa. Commw. Ct. 1998) (Pennsylvania's administrative process for challenging tax assessments provides taxpayers with an adequate state remedy, thus the trial court did not have subject matter jurisdiction to consider taxpayer's section 1983 action absent the exhaustion of their administrative and judicial remedies).
______________________________________________________________________

Rhode Island

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes

    If Allowed, Are They Capped? Amount?

      Yes. $125 per hour under R.I. Gen. Laws section 42-92-2; uncapped under section 44-7-12(b).

    Standard for Awarding Attorney Fees

      At the administrative level, an award for "reasonable litigation expenses," including reasonable attorney fees to the prevailing party in certain adjudicatory proceedings, including tax actions when the agency takes a position that is not substantially justified. At both judicial and administrative levels, taxpayers may recover attorney fees from disputes involving municipal taxes if a court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party, or renders a default judgment against the losing party.

    Authority/Statute

      R.I. Gen. Laws section 42-92-2 (award of reasonable litigation expenses allowed to prevailing party in any agency proceeding (including tax), capped at $125 per hour unless the court determines that special factors justify a higher fee. Prevailing party limited to any individual whose net worth is less than $500,000 at the time the adversary adjudication was initiated, or any individual, partnership, corporation, association, or private organization doing business and located in the state, which is independently owned and operated, not dominant in its field, and which employs 100 or fewer persons at the time the adversary adjudication was initiated. No award is to be allowed unless the agency action was not substantially justified); See also R.I. Admin. Code 60-1-99:2.0, Regulation AF 90-01, and R.I. Reg. TRR 98-1; R.I. Gen. Laws section 44-7-12(b) (in an action for recovery of taxes, the court may award a reasonable attorney fee to the prevailing party in any civil action arising from the collection of a municipal tax levy in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or renders a default judgment against the losing party); Capital Properties Inc. v. Providence, 843 A.2d 456 (R.I. 2004) (property owner entitled to award of attorney fees as prevailing party, under section 44-7-12(b)); R.I. Gen. Laws Ann. section 9-22-20 (in all appeals, the court appealed to, on rendering judgment therein, may award costs for or against the appellant or appellee, or for neither of them, or may apportion the costs among the parties according to the circumstances of the case, and as shall appear equitable).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

South Carolina

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      The court has discretion to award attorney fees to a prevailing party, other than the state or a political subdivision, in a civil action brought by the state or a political subdivision if the agency lacked substantial justification for its action and the award would not be unjust.

    Authority/Statute

      S.C. Code Ann. section 15-77-300 (in any civil action brought by the state, any political subdivision of the state, or any party who is contesting state action, unless the prevailing party is the state or any political subdivision of the state, the court may allow the prevailing party to recover reasonable attorney fees to be taxed as court costs against the appropriate agency if the court finds that the agency acted without substantial justification in pressing its claim against the party and the court finds that there are no special circumstances that would make the award of attorney fees unjust); S.C. Code Ann. section 15-37-10 (costs generally). No mention of attorney fees or costs in the ALC Rules of Procedure, thus defer to Rules of Civil Procedure under section 15.

    Common Fund Doctrine State Tax Case?

      None. Condon v. State, 583 S.E.2d 430 (S.C. 2003) (holding that the attorney general could not appeal a settlement award of attorney fees to class counsel in taxpayer action against the DOR on behalf of plaintiffs that failed to receive a 1 percent sales tax exemption).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

South Dakota

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      The losing party is required to reimburse the prevailing party for court costs and attorney fees from a hearing or appeal in tax matters. Fees are awarded only when the position taken by the losing party at an audit, hearing, or appeal lacked substantial justification.

    Authority/Statute

      S.D. Codified Laws Ann. section 10-59-34 (if a court determines that the losing party has taken a position in an audit, hearing, or appeal that was not substantially justified, the losing party shall reimburse the other party for all court costs and attorney fees associated with the hearing or appeal. The department's reimbursable costs are limited to nonemployee costs); S.D. Code. Ann. section 10-13 (allowing the circuit court and the state supreme court to award reasonable attorney fees in an appeal of a secretary of revenue property valuation decision where the appellant does not prevail); S.D. Code. Ann. section 1-26 (state APA, which does not mention attorney fees or costs); Northern States Power Co. v. South Dakota Dept. of Rev., 578 N.W.2d 579, 582 (S.D. 1998) (finding that the burden rests on the party seeking attorney fees to show a position was not substantially justified under section 10-59-34).

    Common Fund Doctrine State Tax Case?

      None. Van Emmerik v. Montana Dakota Utilities Co., 332 N.W.2d 279, 283 (S.D. 1983) (because state is immune from suit for a refund of the alleged overpayment of taxes, it is not liable for attorney fees).

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Tennessee

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes

    If Allowed, Are They Capped? Amount?

      Yes. Refund proceeding capped at 20 percent of the amount assessed or denied, including interest after payment, to the extent the cap does not conflict with section 1988.

    Standard for Awarding Attorney Fees

      In a claim for refund, "[t]he court shall award to the prevailing party reasonable attorneys' fees and expenses of litigation." There can only be one prevailing party and when each party wins on one issue and receives substantial relief, the court has held that no prevailing party exists for purposes of Tenn. Code Ann. section 67-1-1803. See Five Oaks Golf & Country Club Inc. v. Farr, M2013-01896-COA-R3CV (Tenn. Ct. App. 2014). There are a number of older Tennessee cases that have awarded attorney fees to prevailing taxpayers in other state court actions.

    Authority/Statute

      Tenn. Code Ann. section 67-1-1803 (in claims for refunds the court shall award to the prevailing party reasonable attorney fees and expenses of litigation up to 20 percent of the amount assessed or denied, including interest after payment); Carson Creek Vacation Resorts Inc. v. Dep't of Revenue, 865 S.W.2d 1 (Tenn. 1993) (awarding fees to the department, as the prevailing party, and noting that the fee award under section 67-1-1803(d) was mandatory); Nutritional Support Services Ltd. v. Taylor, 803 S.W.2d 213 (Tenn. 1991) (affirming award of attorney fees against the department and taxing costs to the commissioner); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn. 1993) (remanding case to chancery court to determine the amount of attorney fees to be awarded to taxpayer who prevailed in a corporate income tax refund action); Nashville Golf & Athletic Club v. Huddleston, 837 S.W.2d 49 (Tenn. 1992) (remanding sales tax challenge to the chancery court for a determination of the reasonable attorney fees and litigation expenses under section 67-1-1803); Five Oaks Golf & Country Club Inc. v. Farr, M2013-01896-COA-R3CV (Tenn. Ct. App. Mar. 20, 2014) (each case under Tenn. Code Ann. section 67-1-1803(d) must be evaluated under its own unique facts); See Fannon v. City of LaFollette, 329 S.W.3d 418, 432 (Tenn. 2010) (a case may involve one issue or many and there may even be "degrees of success"); Nutritional Support Servs. Ltd. v. Taylor, 803 S.W.2d 213, 217 (Tenn.1991) (each party won one issue and received substantial relief, consequently, the court held that there was no prevailing party and reversed a prior award of attorney fees).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. Higdon v. State, 404 S.W.3d 478, 484 (Tenn. Ct. App. 2013) (taxpayer who failed to file refund suit within the 90 day statute of limitations was barred from a section 1983 action because an adequate legal remedy existed); But see Bloomingdale's By Mail Ltd. v. Huddleston, 848 S.W.2d 52 (Tenn. 1992) (taxpayer, a nonresident mail-order business, brought refund action challenging state use tax statute. Federal statute governing attorney fees in civil rights actions, and not a state statute governing attorney fees in tax refund actions, applied to a tax refund action in which taxpayer was prevailing party. Court could not rely on state statute to limit amount of attorney fees that would otherwise be awarded under federal statute. Taxpayer prevailed on its claim that state use tax statute violated the commerce clause, and actions for violation of commerce clause may be brought under section 1983, even though taxpayer did not specifically plead or rely upon section 1983).
______________________________________________________________________

Texas

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Generally no, but allowed in excessive appraisals. Taxing authority may recover attorney fees in taxpayer delinquency suits.

    If Allowed, Are They Capped? Amount?

      Yes. Fees are capped at $15,000 or 20 percent of the total amount by which the property owner's tax liability is reduced as a result of the appeal.

    Standard for Awarding Attorney Fees

      Must be an action to remedy excessive or unequal appraisal and the property owner must prevail.

    Authority/Statute

      Texas Tax Code section 42.29 (a property owner who prevails in an appeal to the court based on an unequal appraisal may be awarded reasonable attorney fees. The amount of the award may not exceed the greater of $15,000 or 20 percent of the total amount by which the property owner's tax liability is reduced as a result of the appeal. The amount of an award of attorney fees may not exceed the lesser of $100,000 or the total amount by which the property owner's tax liability is reduced as a result of the appeal); Atascosa Cnty. Appraisal Dist. v. Tymrak, 858 S.W.2d 335, 337 (Tex. 1993) (concluding that section 42.29 authorizes the award of attorney fees for each tax year at issue in a multiple-year property tax case); 1 Tex. Admin. Code section 165.3 (defining attorney fees for OAH purposes as an award of attorney fees as provided for in Texas Tax Code, section 42.29); Tex. Civ. Prac. & Rem. Code Ann. section 37.009 (in any declaratory judgment proceeding, the court may award costs and reasonable and necessary attorney fees as are equitable and just); Tex. Tax Code Ann. section 112.108 (a court may not issue a restraining order, injunction, declaratory judgment, writ of mandamus or prohibition, order requiring the payment of taxes or fees into the registry or custody of the court, or other similar legal or equitable relief against the state or a state agency relating to the applicability, assessment, collection, or constitutionality of a tax or fee covered by this subchapter. A grant of declaratory relief against the state or a state agency shall not entitle the winning party to recover attorney fees); Texas Property Tax Code section 33.48 (a tax unit is entitled to recover reasonable attorney ad litem fees approved by the court and attorney fees in the amount of 15 percent of the total amount of taxes, penalties, and interest due in a suit to collect a delinquent tax).

    Common Fund Doctrine State Tax Case?

      Yes. Lowenberg, v. City of Dallas, 261 S.W.3d 54 (Tex. 2008) (owners and operators of commercial buildings brought class action against the city, successfully challenging as a taking an ordinance that required building registration and imposed a fire registration fee. Court awarded attorney fees under Texas Tax Code section 37.009, (awarding class counsel 30 percent of the common fund (total refunds plus attorney fees assessed against the city) as attorney fees from the class).

    Court Costs?

      No

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See Sharp v. Direct Res. for Print Inc., 910 S.W.2d 535, 541 (Tex. App. 1995) (denying taxpayers claims for attorney fees under section 1983 for failure to show it had not received an adequate remedy under state law).
______________________________________________________________________

Utah

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes. No before the state tax commission.

    If Allowed, Are They Capped? Amount?

      Yes. Reasonable litigation expenses may not exceed $10,000 in the context of the small business statute and an award of actual damages and court costs in a suit against the commission may not exceed $100,000. If the court finds that the civil action brought by the taxpayer is frivolous, the court may impose a penalty of up to $10,000 against the taxpayer. Bad faith and class actions are not capped.

    Standard for Awarding Attorney Fees

      The court may award reasonable litigation expenses to a small business that prevails as a party in an action initiated by the state if the state lacked substantial justification for the action; non-qualifying taxpayers may still bring suit against the commission if the commission or one of its employees intentionally or recklessly takes possession of a taxpayer's property in disregard of its published procedures, laws, or rules, or otherwise intentionally or recklessly disregards published procedures, laws, or rules; class action attorney fees are subject to a mere reasonableness standard for the amount of work actually performed.

    Authority/Statute

      Utah Code Ann. 78-27a-4 (permits the court to award reasonable litigation expenses to a small business, defined as a business entity with no more than 250 employees that is not a subsidiary or affiliate of a business entity not meeting this definition, that prevails as a party in an action initiated by the state); Utah Code Ann. section 59-1-1005 (taxpayer may recover costs and damages not in excess of $100,000 if the commission or one of its employees intentionally or recklessly disregards the law or procedures); Utah Code Ann. section 59-1-304 (taxpayer class action provision allowing reasonable costs and attorney fees in a class action against the state or its political subdivisions in which members of the class are awarded a refund or credit of a tax or fee); Utah Code Ann. section 78B-5-825 (attorney fees shall be awarded where civil action or defense in bad faith); Utah Code Ann. section 59-1-602 (petitions for review made to the district court from the tax commission shall conform to the Utah Rules of Appellate Procedure); Utah R. App. P. 33 (allowing recovery of attorney fees to the prevailing party if the court determines that a motion made or appeal taken under these rules is either frivolous or for delay); Utah R. App. P. 34 (imposing costs upon non-prevailing party in an appeal, including appeals against the state and administrative appeals); Alliant Techsystems Inc. v. Salt Lake Cnty. Bd. of Equalization, 110 P.3d 691 (Utah 2005) (reversing the district court's award of attorney fees against a county assessor in a tax refund settlement agreement between the BOE and the taxpayer corporation); Utah Admin. Code r. R861-1A (practices and procedures for the commission, which omit any mention of attorney fees or costs).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Vermont

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      No

    If Allowed, Are They Capped? Amount?

      n/a

    Standard for Awarding Attorney Fees

      n/a

    Authority/Statute

      32 V.S.A. section 1471 (allowing a fee equal to the entry fees, the cost of service fees incurred, and the total amount of the certificate of witness fees paid to be taxed in the bill of costs to the recovering party in the supreme court, superior courts, or the judicial bureau).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See Ran-Mar Inc. v. City of Barre and Oliver L. Twombly, Esq., 2005 WL 5568526 (Vt. Superior Ct. 2005) (finding that the federal claim brought under section 1983 must be dismissed, because there are state law remedies that plaintiffs had asserted).
______________________________________________________________________

Virginia

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      No. However, the state or locality may statutorily recover attorney fees or costs in certain instances. See Va. Code Ann. section 58.1-3916 and Attorney General Opinion 09-067.

    If Allowed, Are They Capped? Amount?

      n/a

    Standard for Awarding Attorney Fees

      n/a

    Authority/Statute

      Va. Code Ann. section 17.1-629 (in no case, civil or criminal, except when otherwise specially provided, shall there be a judgment for costs against the commonwealth); 23 Va. Admin. Code section 10-20-165 (an administrative appeal of an assessment filed under Va. Code Ann. section 58.1-1821 is not subject to the APA); Va. Code Ann. section 58.1-1829 (if the final order of the court in any proceeding under sections 58.1-1825 through 58.1-1828 grants the relief prayed for, no costs shall be taxed against the applicant; but in no event shall any costs be taxed against the commonwealth in any proceeding under such sections); Va. Code Ann. section 58.1-3916 (the governing body of any county, city, or town may provide by ordinance for the recovery of reasonable attorney or collection agency's fees actually contracted for, not to exceed 20 percent of the delinquent taxes and other charges so collected); See also Attorney General Opinion, 09-067 (Nov. 3, 2009).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      No

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Denying. See Indian Creek Monument Sales v. Adkins, 301 F. Supp.2d 555 (W.D. Va. 2004) (county taxpayers brought action under section 1983 against members of a county board of supervisors, seeking refund of payments made to the county under unconstitutional solid waste disposal fee and were barred from section 1983 due to availability of an adequate legal remedy in state courts).
______________________________________________________________________

Washington

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes but only in actions for less than $10,000. Frivolous claims and actions subject to the state EAJA. Not allowed before the board of tax appeals.

    If Allowed, Are They Capped? Amount?

      Under the EAJA, fees shall not be awarded in excess of $150 per hour unless a special factor exists to justify a higher fee.

    Standard for Awarding Attorney Fees

      Prevailing party in an action for damages less than $10,000; frivolous motion or claim advanced without reasonable cause; prevailing party in the judicial review of an agency action that was not substantially justified and would not be unjust.

    Authority/Statute

      Wash. Rev. Code Ann. section 4.84.250 (in any action for damages where the amount pleaded by the prevailing party, exclusive of costs, is $10,000 or less, there shall be taxed and allowed to the prevailing party as a part of the costs of the action a reasonable amount to be fixed by the court as attorney fees); Wash. Rev. Code Ann. section 4.84.185 (in any civil action, the court having jurisdiction may, upon written findings by the judge that the action, counterclaim, cross-claim, third-party claim, or defense was frivolous and advanced without reasonable cause, require the non-prevailing party to pay the prevailing party the reasonable expenses, including fees of attorneys, incurred in opposing such action); Wash. Rev. Code Ann. section 4.84.350 (except as otherwise specifically provided by statute, a court shall award a qualified party that prevails in a judicial review of an agency action fees and other expenses, including reasonable attorney fees, unless the court finds that the agency action was substantially justified or that circumstances make an award unjust; See also Wash. Rev. Code Ann. section 4.84.340 (attorney fees shall not be awarded in excess of $150 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys, justifies a higher fee. A qualified party is any business entity whose net worth did not exceed $5 million at the time the initial petition for judicial review was filed. There is an exception for 501(c)(3) organizations and cooperative associations as defined in section 15(a) of the agricultural marketing act); Wash. Rev. Code Ann. section 4.84.010 (allowing costs for certain expenses of the prevailing party).

    Common Fund Doctrine State Tax Case?

      Yes. See Covell v. City of Seattle, 905 P.2d 324 (Wash. 1995) (taxpayers who brought a successful class action challenging a city ordinance that imposed residential street utility charges were entitled to an award of attorney fees under the common fund doctrine).

    Court Costs?

      Yes, but not before the board of tax appeals.

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      Awarding. See Ino Ino Inc. v. City of Bellevue, 943 P.2d 1358 (Wash. 1997) (supreme court applied the state equitable rule that permits an award of attorney fees for successful efforts to obtain the dissolution of an injunction, and rejected the argument that the state rule is preempted by section 1988 standards. Thus, the court permitted prevailing defendants to recover without a finding that the plaintiff's claim was frivolous, unreasonable, or groundless).
______________________________________________________________________

West Virginia

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      No, except in claims against the state where a motion or claim is frivolous.

    If Allowed, Are They Capped? Amount?

      No

    Standard for Awarding Attorney Fees

      In claims against the state, award requires the court to strike a motion not well-grounded in fact, not warranted by existing law, or interposed for any improper purpose such as to harass, delay, or needlessly increase costs.

    Authority/Statute

      W. Va. Code Ann. section 14-2-15 (in the context of claims against the state, an order striking any motion or other paper which is not well-grounded in fact, not warranted by existing law, or interposed for any improper purpose such as to harass, delay, or needlessly increase costs may include payment of reasonable expenses incurred because of the pleading including reasonable attorney fee); W. Va. Code Ann. section 11-10-14b (in an action for unconstitutional overpayment of taxes, the amount of monetary relief shall be comprised solely of the amount of overpayment, together with interest, and shall not include damages of any kind, court costs, or attorney fees except when ordered by a court of competent jurisdiction. No cause of action shall exist against said tax commissioner, in his individual capacity, for damages, attorney fees or court costs incurred in litigating the constitutionality of any tax law administered under this article which is subsequently determined to be unconstitutional); W. Va. Code Ann. section 50-3-1a (in the magistrate court, except as otherwise provided by law, costs shall be assessed against the losing party or parties).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      Yes, in magistrative court only.

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Wisconsin

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      Yes, under the EAJA. At the administrative level only allowed when there is a frivolous claim

    If Allowed, Are They Capped? Amount?

      Yes. Capped from $100 to $500 depending on amount of recovery. Under EAJA, attorney or agent fees may not be awarded in excess of $150 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents, justifies a higher fee.

    Standard for Awarding Attorney Fees

      Prevailing party in an action by a state agency unless substantially justified or an award would be unjust. To establish that its position was substantially justified, an agency must show a reasonable basis for the truth of the facts alleged, reasonable basis in law for the theory propounded, and a reasonable connection between the facts alleged and the legal theory propounded. Requires a frivolous petition, claim, or defense at the administrative level.

    Authority/Statute

      Generally costs are allowed to plaintiff upon recovery (Wis. Stat. section 814.01); The EAJA provides that the court shall award costs, including attorney fees, to the prevailing party in any action by a state agency, unless the court finds the state agency was substantially justified in taking its position or that special circumstances exist that would make the award unjust (Wis. Stat. Ann. section 814.245); Attorney or agent fees may not be awarded in excess of $150 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents, justifies a higher fee. When the amount recovered or the value of the property involved is greater than $10,000, attorney fees shall be $500; when it is equal to or less than $10,000, but is $1,000 or more, attorney fees shall be $300; when it is less than $1,000, attorney fees shall be $100. In all other cases in which there is no amount recovered or that do not involve property, attorney fees shall be $300 (Wis. Stat. section 814.04(1)); In any action in which compensatory damages are awarded, the court shall presume that reasonable attorney fees do not exceed three times the amount of the compensatory damages awarded, but this presumption may be overcome if the court determines doing so would be reasonable (Wis. Stat. section 814.045(1)); If a hearing examiner or the tax appeals commission finds, at any time during the proceeding, that an administrative hearing commenced or continued by a petitioner or a claim or defense used by a party is frivolous, the hearing examiner or tax appeals commission shall award the successful party the costs and reasonable attorney fees that are directly attributable to responding to the frivolous petition, claim, or defense (Wis. Stat. Ann. section 227.483).

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      Yes

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

Wyoming

______________________________________________________________________

    Allow Attorney Fees in Tax Matters?

      No

    If Allowed, Are They Capped? Amount?

      n/a

    Standard for Awarding Attorney Fees

      n/a

    Authority/Statute

      n/a

    Common Fund Doctrine State Tax Case?

      None

    Court Costs?

      No

    Awarding or Denying of 1983 Claims/1988 Fees in State Court

      None
______________________________________________________________________

FOOTNOTES

1 Nat'l Private Truck Council Inc. v. Oklahoma Tax Comm'n, 515 U.S. 582 (1995) (holding that section 1983 will provide no basis for injunctive or declaratory relief against a state, either in federal or state court, when an adequate legal remedy exists).

2 See, e.g., Harlan Sprague Dawley Inc. v. Dept. of State Rev., 583 N.E.2d 214 (Ind. Tax Ct. 1991) (holding that a state remedy is inadequate for section 1983 purposes if it fails to provide for the recovery of attorney fees because if the state burdens a taxpayer's federal rights and she cannot afford an attorney, she cannot vindicate those rights and will not be made whole after proving deprivation).

3 See Monroe v. Pape, 365 U.S. 167, 183 (1961) overruled on other grounds by Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978).

4 Edward Valves Inc. v. Wake Cnty., 343 N.C. 426 (1996) (taxpayer could pursue section 1983 remedies on its equal protection claim in addition to state law remedies). See also Zinermon v. Burch, 494 U.S. 113 (1990) (a violation of a substantive constitutional right other than a deprivation of due process is immediately actionable under section 1983, regardless of the state law procedures in place to cure the violation); and Daniels v. Williams, 474 U.S. 327 (1986).

5 Wake Cnty. v. Edward Valves Inc., 519 U.S. 1112 (1997).

6 National Private Truck Council, 515 U.S. at 591, n.6; see also Jenkins v. Washington Convention Ctr., 59 F. Supp.2d 78, 85 (D.D.C. 1999), aff'd, 236 F.3d 6 (D.C. Cir. 2001).

7 National Private Truck Council (stating that if a state court awards a refund to a taxpayer on the ground that the tax violates the U.S. Constitution but state tax authorities continue to impose the unconstitutional tax, injunctive and declaratory relief might then be appropriate. In those circumstances, the remedy might be thought to be inadequate).

8 See, e.g., Internal Imp. Fund Trustees v. Greenough, 105 U.S. 527 (1881); Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116 (1885); and Sprague v. Ticonic Nat. Bank, 307 U.S. 161 (1939).

9 See generally John P. Dawson, "Lawyers and Involuntary Clients: Attorney Fees from Funds," 87 Harv. L. Rev. 1597, 1601 (1974) (noting that the common fund as a source of counsel fees was created, almost single-handedly, by the U.S. Supreme Court).

10 Mills v. Electric Auto-Lite Co., 396 U.S. 375, 394 (1970).

11 Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 264 (1975), n.39.

12 See Kerr v. Killian, 3 P.3d 1133, 1138 (Ariz. Ct. App. 2000) (explaining that while other states have imposed those technical limitations, Arizona remains focused on whether some finite benefit flows to a determinable group of plaintiffs).

13 John F. Vargo, "The American Rule on Attorney Fee Allocation: The Injured Person's Access to Justice," 42 Am. U. L. Rev. 1567, 1591-1592 (1993); see also Albert A. Ehrenzweig, "Reimbursement of Counsel Fees and the Great Society," 54 Cal. L. Rev. 792, 792 (1966) (contending that winning litigants are not made whole when forced to pay their own attorney fees).

14 The authors note that state conformity to the IRC for state corporate income and franchise tax purposes may provide an additional avenue for taxpayers to pursue fee awards in many states (through incorporation by reference to the code in varying degrees). We have not evaluated the applicability of the federal fee-granting provision (IRC section 7430).


END OF FOOTNOTES


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