Michael Balice, Docket No. 17799-18L, filed 9/24/19 justifies a prediction I made back in 2015; see my blogpost “The Jolly Rounder,” 3/16/15. Mike is back, albeit not on a Rule 161, but fighting off IRS’ summary J motion to affirm Appeals’ bouncing of Mike’s CDP without a hearing on the grounds of frivolity.

That Obliging Jurist, Judge David Gustafson, aware of Mike’s shady track record in Tax Court, nevertheless finds that not every word of Mike’s form letter petition is frivolous or shows an intent to delay and hinder the collection of revenue.

“In this case our review of Appeals’ determination would be assisted by more information about which positions reflected in Mr. Balice’s CDP hearing request are ‘position[s] which the Secretary has identified as frivolous under subsection (c)’ of section 6702.

“It is not clear whether there could be anything frivolous or dilatory about calling on Appeals to conduct the ‘verification’ required by sections 6320(c) and 6330(c)(1). Mr. Balice may be mistaken in his purported demand that the verification ‘be provided to me before the hearing’, since the statute requires that it be obtained ‘at the hearing’, sec. 6330(c)(1); but we do not yet see how this renders his position not just erroneous but ‘frivolous’.” Order, at p. 6.

Moreover, there is a chop in Mike’s latest case, and neither IRS nor Appeals seems to have dealt with the Section 6751(b) Boss Hoss sign-off.

“If, for purposes of section 6330(g), only some “portion” or “portions” of Mr. Balice’s CDP hearing request were frivolous or dilatory, but not the entire request, then it would seem that Appeals may have abused its discretion in denying Mr. Balice a CDP hearing. When this case is called from the calendar, the parties should be prepared to discuss whether that is so and, if it is, what further proceedings are appropriate in this case.” Order, at pp. 6-7.

Glad to see Mike is out of the Ft Dix FCI. It’s just about three weeks shy of fifty (count ‘em, fifty) years since I departed Ft Dix (albeit it not the FCI), DD214 in hand.