UNITED STATES of America, Petitioner, v. CHURCH OF SCIENTOLOGY OF BOSTON, INC., and Antonia Chrambanis, Secretary, Respondents. No. MBD 90-302-T. United States District Court, D. Massachusetts. March 18, 1993. MEMORANDUM TAURO, Chief Judge: *1 In the latter part of 1988 the Internal Revenue Service ("IRS") initiated an inquiry into the tax exempt status of the Church of Scientology of Boston ("CSB"). In connection with that inquiry, the IRS issued a summons on October 13, 1989, directing CSB to produce various church records. When CSB failed to comply, the government brought a petition to enforce the summons. On June 18, 1990, this court denied the government's petition, finding that "there ha[d] not been a demonstration of necessity for the IRS's massive document request." United States v. Church of Scientology of Boston, Inc. [90-2 USTC P 50,349], 739 F.Supp. 46, 50 (D.Mass.1990) [hereinafter CSB I ]. The Court of Appeals for the First Circuit subsequently affirmed that decision. United States v. Church of Scientology of Boston, Inc. [91-2 USTC P 50,279], 933 F.2d 1074 (1st Cir.1991) [hereinafter CSB II ]. As the prevailing party in the enforcement action, CSB now moves for an award of attorneys' fees, expenses and costs, pursuant to 26 U.S.C. s 7430 [FN1] or, in the alternative, 28 U.S.C. s 2412(b). [FN2] I. To recover attorneys' fees, expenses and costs under 26 U.S.C. s 7430, CSB must "establish[ ] that the position of the [IRS] in the proceeding was not substantially justified." 26 U.S.C. s 7430(c)(4)(A)(i). CSB cannot satisfy its burden simply by pointing to the government's defeat in the summons enforcement action. See De Allende v. Baker, 891 F.2d 7, 12 (1st Cir.1989) ("The mere fact that the government lost in the underlying litigation does not create a presumption that its position was not substantially justified."). It must show that the government's position lacked a "reasonable basis both in law and fact." See Pierce v. Underwood, 487 U.S. 552, 565 (1988) (interpreting "substantially justified" to mean "justified to a degree that could satisfy a reasonable person"); United States v. Yoffe, 775 F.2d 447, 450 (1st Cir.1985) (describing test as "a middle ground between an automatic award of fees to a prevailing party and an award made only when the government's position was frivolous"). [FN3] Applying this standard, this court is convinced that the government's position during the summons enforcement proceeding was not substantially justified. The basic issue raised in that proceeding was whether the church records requested by the IRS were "necessary to determine" CSB's tax liability. 26 U.S.C. s 7611(b)(1). Both before this court and on appeal, the IRS "primarily argue[d] that it ha[d] shown the summons to be 'necessary' because 'necessary' means 'relevant.' " CSB II, 933 F.2d at 1076 (emphasis omitted). As the Court of Appeals found, this interpretation, while "ingenious," is "strained, contrary to the view set forth in [relevant cases], and in conflict with the ... legislative history." Id. at 1077. Although an unsuccessful legal argument may nevertheless be reasonable, the government's position in this case had been rejected by virtually every court that had considered it. See id. (citing several federal court decisions rejecting the " 'necessary' means 'relevant' " argument). This court finds such a string of losses to be "indicative." See Underwood, 487 U.S. at 569. See also McDonald v. Secretary of Health & Human Services, 884 F.2d 1468, 1477 (1st Cir.1989) ("In litigation, as in sports, a [winless] record suggests that something is amiss."). *2 Its legal argument aside, the IRS also failed to proffer facts establishing the necessity of the records it requested. CSB I, 739 F.Supp. at 50 (noting the IRS's "failure to link in any way particular documents to explanations of their necessity" to its examination of CSB). The declarations accompanying the IRS summons "merely state[d] a conclusion" and did not explain in any detail how or why the documents requested were "necessary" to the investigation. CSB II, 933 F.2d at 1075. This deficiency cannot be remedied now by a post hoc rationalization of the investigation. As the government acknowledges in its opposition to respondents' motion, its position in the litigation was "its position throughout the district court and appellate proceedings." In the view of this court, that position was not substantially justified. II. To calculate a reasonable fee, the court employs a two-step process. First, "the number of hours reasonably expended on the litigation [is] multiplied by a reasonable hourly rate" to arrive at the "lodestar" figure. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In making this initial determination, the court "should exclude ... hours that were not 'reasonably expanded' " on the litigation. Id. at 434 (citation omitted). See Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980) ("It does not follow that the time actually expended is the amount of time reasonably expended.") (emphasis in original). Second, the court adjusts the lodestar figure upward or downward if any special factors dictate such a result. Deary v. City of Gloucester, 789 F.Supp. 61, 63 (D.Mass.1992) (citation omitted). According to their declarations, counsel for CSB spent a total of 876.5 hours on this case: 781.95 hours on the summons enforcement proceeding, 74.55 hours on their fee application, and 20 hours on the hearing on the application. [FN4] Although some of the entries in their time records are somewhat vague, [FN5] the court finds no reason to question their overall accuracy. Accordingly, counsel for CSB are entitled to recover fees for 876.5 hours of their time. Under section 7430, reasonable attorneys' fees "shall not be in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor ... justifies a higher rate." 26 U.S.C. s 7430(c)(1)(B)(iii). In this case, the court finds a cost-of-living adjustment warranted. CSB contends that the adjustment should be based on 1981 figures, while the government argues that the correct date from which any increase should be measured is 1986. Although there is authority to support CSB's position, see Bayer v. Commissioner [CCH Dec. 47,921], 98 T.C. 2 (1992), this court finds that the more persuasive precedents favor the government's view. See Cassuto v. Commissioner [91-2 USTC P 50,334], 936 F.2d 736 (2d Cir.1991) (holding that cost of living adjustment should be calculated from base year 1986); Balk v. United States, C.A. No. 90-10313-WF, 1993 U.S.Dist. LEXIS 1670 (D.Mass. Feb. 1, 1993) (same). Accordingly, a reasonable hourly rate of $92.17 will be used in calculating respondents' fee award. [FN6] III. *3 Finding no special factors warranting further adjustments, the court concludes that respondents are entitled to an award of attorneys' fees, expenses and costs in the amount of $80,787.00, reflecting 876.5 hours billed at a reasonable hourly rate of $92.17. An order will issue. FN1. "In any ... court proceeding which is brought by or against the United States in connection with the determination, collection, or refund of any tax, interest, or penalty under this title, the prevailing party may be awarded a judgment or a settlement for ... reasonable litigation costs incurred in connection with such court proceeding." 26 U.S.C. s 7430(a). FN2. This alternative basis for CSB's motion warrants little attention. 28 U.S.C. s 2412, the attorneys' fees provision of the Equal Access to Justice Act ("EAJA"), does not apply "to any costs, fees, and other expenses in connection with any proceeding to which [26 U.S.C. s 7430] applies." 28 U.S.C. s 2412(e). See United States v. McPherson [88-1 USTC P 9194], 840 F.2d 244, 245-46 (4th Cir.1988) (recognizing awards under s 2412 and s 7430 to be mutually exclusive). FN3. Although these cases interpreted the EAJA, and not s 7430, the relevant language of the two statutes is identical. Compare 28 U.S.C. s 2412(d)(1)(A) ("substantially justified") with 26 U.S.C. s 7430(c)(4)(A)(i) (same). FN4. These hours were distributed among five different attorneys as follows: Eric M. Lieberman, 355.75 hours; Hillary Richard, 337.6 hours; Michelle Lee Hertzberg, 110.75 hours; Earle C. Cooley, 40 hours; and Louise F. Melling, 32.4 hours. FN5. For example, the time records of Eric M. Lieberman and Hillary Richard, the CSB attorneys who spent the most time on this case, include the following entries: "Work on brief," "Work on opp.," "Draft," and "Research." In the opinion of this court, such descriptions barely constitute "a full and specific accounting" of the attorneys' time. See Calhoun v. Acme Cleveland Corp., 801 F.2d 558, 560 (1st Cir.1986) (rejecting bills which lack such specifics as the nature of the work performed). FN6. This figure is arrived at by multiplying the statutory fee ($75) by the ratio of the October, 1991 Consumer Price Index for All Urban Consumers (137.4) to the January, 1986 CPI-U (111.8): $75 x (137.4/111.8) = $92.17.