Attorney-at-Law

ANOTHER ROUNDER’S DAY

In Uncategorized on 06/03/2015 at 17:01

That Obliging Jurist, Judge David Gustafson, invited Curtis Leyshon to come back with some reason why Judge Gustafson shouldn’t take judicial notice of the 2012 Tax Court proceedings. See my blogpost “Rounders’ Day,” 1/16/15.

I warned Curt at the time “Hint: Curt, don’t play the protester game.”

But “my words like silent raindrops fall,” as a much better writer put it.

So here’s Judge Gustafson reiterating his half-dozen warnings to Curt to eschew frivolity, and finally nailing Curt with a Section 6673 $2K chop. Curtis E. Leyshon, 2015 T. C. Memo. 104, filed 6/3/15.

I won’t go over Curt’s argument conflating tax on self-employment income (Title A) with Title B employment taxes, and his other protester jive. Judge Gustafson blows them all away.

Curt claims that, by taking judicial notice of his wife’s trial (whereat he assisted and participated and whereat she was nailed), Judge Gustafson is trying the case for the IRS.

No, Curt.

“The Commissioner did not move for a penalty or ask us to take notice of the prior case; and the gist of Mr. Leyshon’s contention seems to be that, by taking notice, the Court has in effect abandoned judicial independence and has taken sides with and done the job of one of the parties.

“In fact, the Court has explicit authority to ‘take judicial notice on its own’. Fed. R. Evid. 201(c)(1) (emphasis added). We do so in this case not to promote the Commissioner’s interests as a litigant but rather to pursue the Court’s own interest in managing its own business. The Tax Court exists to provide a forum for litigation of taxpayers’ bona fide disputes with the IRS. The Court’s ability to perform that function is impeded when a taxpayer files a petition for some other reason, such as to defy the law or to delay the inevitable. Therefore, quite apart from the Commissioner’s interest in the section 6673 penalty, the Court has its own legitimate interest in imposing the penalty, where appropriate. The statute does not by any means make the IRS the gatekeeper of this issue but rather authorizes the penalty ‘[w]henever it appears to the Tax Court that’ the litigation is frivolous or dilatory. Sec. 6673(a)(1) (emphasis added).” 2015 T. C. Memo. 104, at p. 15.

But then Judge Gustafson goes through a twelve-step checklist for imposing Section 6673 chops, with “somber reasoning and copious citation of precedents.”

But since Curt’s deficiency is small, he gets a $2K chop.

However, if he tries it again, he can go for the next level.

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