In Uncategorized on 09/05/2018 at 15:05

Back a year ago, I almost picked up on John Hawk-Bey, then known as John Hawkbey. See my blogpost “Does IRS Read My Blog?” 10/11/17.

John sorely tempted me, though. You can read about him again if you missed his first appearance in 2017 T. C. Memo. 199, filed 11/10/17. John was a frivolity merchant, and IRS whanged him accordingly.

But nowise deterred, either by his conviction after a jury trial on four counts of tax evasion in USDCEDPA or Judge Lauber’s blow-off of his petitioned SNOD above-referenced, John is back. Here’s John V. Hawk-Bey, Docket No. 10377-17L, filed 9/5/18, with STJ Diana L. (“Sidewalks of New York”) Leyden dealing with IRS’ motion.

Now John has petitioned a NOD from a CDP. IRS wants John’s petition tossed for failure to state a claim. John claims the Section 6702(a) chop he got is a “frivolous penalty.” Order, at p. 3, footnote 2.

After the usual supplementary paper joust, IRS admits it has both burden of production and burden of proof as to the Section 6702(a) frivolous-return chop. But IRS claims John still hasn’t stated a claim upon which relief can be granted.

Remember, STJ Di is the taxpayer’s friend, and even the non-taxpaying-frivolity-merchant’s friend.

“In support of his motion to dismiss respondent points out that much of the petition consists of frivolous materials that give rise to no justiciable issue. For the most part, the Court agrees. However, because the burden of proof with respect to the section 6702(a) penalty is upon respondent, petitioner’s pleading threshold is extremely low. In his Amendment to Amended Petition, petitioner claims he should not have been assessed a section 6702(a) penalty in his Amendment to Amended Petition and, therefore, has stated a claim for which relief can be granted.” Order, at p. 3.

So STJ Di strikes everything in John’s pleadings but the “shouldn’t have” part, and tells IRS to respond.

Takeaway- If IRS has burden of proof, you don’t have to plead much. Practitioner, enGraev that in concrete.

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