In Uncategorized on 08/19/2016 at 16:15

“Compare and contrast,” as the old college essay questions used to read, the various forms of frivolity encountered here in United States Tax Court. Well, here are Judge Pugh and The Judge With a Heart, STJ Armen, each with a possible frivoller on hand, and the approach taken by each may be instructive.

First up, Judge Pugh, and Kenton R. Fleming, Docket No. 26391-14. Filed 8/19/16, undesignated. If something here rings a bell, check out my blogpost “Is There a Doctor in the House,” 10/16/14. Kenton R. had some physical ailment and Judge Morrison granted him a continuance.

But Kenton R. still had lost a Rule 91(f)(2) motion back then. And his batting average in the Rule 91 department hadn’t been great before then, either. “In Dkt. nos. 8814-10, 27608-10, and 14386-11, petitioner failed to respond to an Order to Show Cause under Rule 91(f), dated December 18, 2012. By Order date January 15, 2013, the Order to Show Cause was made absolute and the facts and evidence set forth in respondent’s proposed stipulation of facts, including stipulations regarding petitioner’s employment with SPSU, were deemed to be established for purposes of those cases.” Order, at p. 2, footnote 2.

SPSU is Southern Polytechnic State University, which my sources tell me is now part of Kennesaw State University, in Marietta, GA.

Kenton R.’s current Rule 91 problems are dealt with seriatim (as my already-on-their-way-to-the-ballgame colleagues would say). “Petitioner’s objections do not raise any reasonable factual disputes for purposes of Rule 91. His primary objections are based on his arguments that he has zero tax liability and no filing obligation. While he may dispute whether respondent’s [IRS’] actions were legally correct, he may not fairly dispute whether respondent took those actions. It is understood that he does not agree with the actions represented by those documents; and we do not consider stipulation to be a concession that the actions were proper.” Order, at pp. 1-2.

And objecting to IRS transcripts as hearsay does not mean that they are not actual records. Admissibility is a question for trial…if it gets that far. And Judge Pugh gives Kenton R. a reservation on that point, so he can duke it out with IRS.

Likewise, he doesn’t need to stip that he was an employee of SPSU, but if he can’t show facts different than the three (count ‘em, three) times a Rule 91 order said he was, he’s looking at a Section 6673 red card.

Kenton R. does get a bye. “For certain stipulations, petitioner proposed different wording. That negotiation should have occurred before respondent’s motion to compel was filed. We infer from the record that petitioner did not provide a working telephone number to respondent despite our order to do so. Nonetheless we will not require petitioner to stipulate that assessments were ‘in error’ in stipulations 11 and 12. Respondent’s proposed stipulation 15 that ‘Respondent maintains his position’ as to the deficiencies owed is not a fact to be established at trial; therefore we will not compel stipulation of that statement.” Order, at p. 2.

Read those stipulations, practitioner. IRS, like every litigant, will try to steal a base.

But Kenton R. already got a Section 6673 chop in a prior case. So he’d best watch his legal arguments.

STJ Armen is a lot tougher on Joshua Wade Bettar, 19633-15S, filed 8/19/16. He socks JW with a $500 Section 6673 chop over a $1540 deficiency, and tosses his case for failure to state a claim (Rule 40).

STJ Armen: “There is neither assignment of error nor allegation of fact in support of any justiciable claim. Rather, the petition appears to be merely an expression of protest and contains nothing but frivolous and groundless arguments. Under the circumstances, there is no need to catalog petitioner’s arguments and painstakingly address them.” Order, at p. 2.

And STJ Armen throws in the Crain “somber reasoning and copious citation of precedent” line, of course.

Notwithstanding the instances wherein I have blogged STJ Armen’s benevolence to the deserving, JW must have really gotten to him.

“Petitioner’s position, as set forth in the petition, consists of tax protestor rhetoric. Based on well-established law, petitioner’s position is frivolous and groundless.

“We are also convinced that petitioner instituted and maintained this proceeding primarily, if not exclusively, for purposes of delay. Having to deal with this matter wasted the Court’s time, as well as respondent’s. Moreover, taxpayers with genuine controversies may have been delayed.” Order, at p. 3.

I don’t know what JW put in his petition, but whatever it was, I suggest one would do well to avoid repeating it. At least in STJ Armen’s division.


  1. […] Taishoff, VARIETIES OF FRIVOLITY. “‘Compare and contrast,’ as the old college essay questions used to read, the […]


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