At the end of June I pitched the concept of a sliding scale for Section 6673 frivolity chops. Specifically, my concern that unbridled judicial discretion, such as is set forth in the flush language of Section 6673(a)(1) “whenever it appears to the Court” that a petitioner or attorney or USTCP was playing prohibited games, could give rise to abuse-of-discretion or excessive-fines-or-penalties argument on appeal from the chop.

See my blogpost “The Shorn Lamb,” 6/29/21.

Lawrence James Saccato, Docket No. 831-19, filed 8/12/21, gets even better treatment than Jamillah Kammillah Muhammad got in my above-cited blogpost. Larry skipped filing three (count ’em, three) years, but IRS gave him SFRs based on third-party reports, and SNODs at no extra charge.

Judge Albert G (“Scholar Al”) Lauber catalogues Larry’s delictions.

“In his petition he asserted that he was not required to file Federal income tax returns because he is a ‘State Citizen of Oregon,’ not a ‘[F]ederal Citizen and NOT a resident alien.’” Order, at p. 1.

Larry was consistent, at least.

“…he filed a motion to dismiss, arguing that the IRS ‘lacks personam jurisdiction’ over
him because he is a ‘Citizen of Oregon,’ not a ‘[F]ederal citizen.’ And he asserted that the deficiency notices were invalid because the IRS issued them only to ‘damage and harass him.’ By Order…we denied petitioner’s motion to dismiss….he moved to vacate our Order, again asserting that the deficiency notices were invalid and that the Court must take ‘Mandatory Judicial Notice’ of the Internal Revenue Code. We denied that motion….In a motion for continuance of trial… he again asserted that he is neither a ‘[F]ederal citizen nor a resident alien.’ Order, at pp. 1-2.

You get the idea.

Back in February, Judge Scholar Al showed Larry the Section 6673 yellow card.

Larry now files a motion entitled “Motion to Strike Rule 52 and Motion to Dismiss,” reiterating the same protester jive, but maybe he’s picked up something.

“Most of petitioner’s contentions are frivolous on their face. To the extent they are not frivolous–i.e., to the extent he is asserting that the SFRs did not comply with I.R.C. § 6020(b) or that he did not receive the income alleged in the SFRs–these issues present questions of fact that are not a proper basis for a motion to dismiss. As we have explained to petitioner previously, he bears the burden of proving that the IRS’ determinations are erroneous. Whether he can meet his burden involves factual matters that must be resolved in the course of further proceedings.” Order, at p. 2. (Citations omitted).

Judge, I applaud your efforts to mollify the judicial wind not only to the shorn lamb, but even to the Frenched lamb just out of the roasting oven and furnishing forth the marriage table. I agree that no one with the merest scintilla of a charitably-colorable claim for which relief can be granted by the furthest-most stretch of judicial imagination and invention can be precluded from their chance to prove it. Evelyn Beatrice Hall’s 1906 words, erroneously attributed to Voltaire, should be inscribed in letters of purest gold on face of The Glasshouse on Second Street: “I disapprove of everything you say, but will defend to the death your right to say it.”

But.

Larry said it. Larry said it four (count ’em, four) times. Wherefore you and the hardlaboring intake clerks, flailing datestampers, 18F docket-blockers, Genius Baristas, et hoc genus omne were obliged to invest work, labor and materials, none of which is costless, in Larry’s jive, and in payment whereof Larry’s sixty bucks isn’t even a waiter’s tip.

Yeah, Larry has a claim. I wouldn’t bet the aforesaid waiter’s tip on his case. But if he fails, he should pay.

There needs to be guidelines for Section 6673 chops. Dodgers, wits, wags, and wiseacres should not be permitted to chew up resources needed to help honest taxpayers, whose good-faith claims, even if erroneous, deserve to be heard. Add a couple zeros (hi, Judge Holmes) to their claims, Judge; their few dollars are just as important to them as the nine-figure deficiency is to the multinational Fortune 50.

There’s no provision for regulations in the statute, nor should there be. Judges have to judge the case before them, not the one the executive branch or the legislative branch doesn’t have. It’s not for Congress or Treasury to fix.

But Tax Court can, without unduly restricting the individual Judge or STJ. Flexibility there must be, but frivolites should not have a free-fire zone. And appellate courts should have something to which to look if the frivolites try to appeal a Section 6673 chop on the basis of abuse of discretion.

How ’bout it, general counsel?