Judge David Gustafson echoes Ike Watts, as he counsels Jack Donald Supinger, Docket No. 10957-20, filed 10/29/21* on the wages of frivolity and the need for repentance in this off-the-bencher. Judge Gustafson really holds out the lamp to burn, although JD is a frivolite, zero-return variety.

True, JD “…was polite in his conduct of the trial. He timely submitted his pretrial memorandum and cooperated with the logistics of the remote trial by electronically filing his exhibits. Furthermore, as far as we know Mr. Supinger has not made frivolous contentions in court nor been penalized for doing so.” Transcript, at pp. 15-16.

Also true, his employer sent two W-2s for the same amount, so the SNOD was wrong, and IRS conceded the excess in its pretrial memo. That’s also in JD’s favor: “…we note that the amount of the deficiency was not nearly $25,000 as determined in the SNOD but rather only about $9,000. Consequently his filing of his petition did result (no thanks to his frivolous position) in a redetermination in his favor.” Transcript, at p. 15.

But JD fooled around at the trial (however politely), despite Judge Gustafson having warned him before and during trial that Section 6673 means what it says. Notwithstanding the yellow cards, he “dodged, evaded and obfuscated. He put the Commissioner to the expense and trouble of producing witnesses to prove facts for which Mr. Supinger had no rebuttal.” Transcript, at p. 16.

IRS called personnel from both JD’s employers for the year at issue to testify about JD’s employment, the numbers shown on the W-2s and the SNOD, and authenticate business records. Transcript, at p.10. I cannot think causing IRS to subpoena staff for a frivolous tax trial endears one to one’s employers.

Anyway, JD gets the five-and-ten chop (tax understated greater than lesser of ten percent or $5K).

And Judge Gustafson hits JD with a $5K Section 6673 frivolity chop.

Except.

“We point out to Mr. Supinger (as we stated at the end of the trial) that the deadline to file a motion for reconsideration is 30 days after the Court serves the transcript of this opinion, see Rule 161. If Mr. Supinger perceives any mathematical error in the computation of the $9,008 deficiency attached to the Commissioner’s pretrial memorandum (Doc. 7, Ex. A) then he could offer a correction in such a motion.

“Moreover, in a motion for reconsideration, Mr. Supinger could address the penalty issue by offering the Court his assurance that he will not hereafter repeat his frivolous arguments in future litigation, but will acknowledge that, under the law as the courts unanimously construe it, he owes Federal income tax on the compensation he receives for his work. An unequivocal commitment to that effect by Mr. Supinger could prompt a reduction in the amount of the penalty.” Transcript, at pp. 17-18.

However obliging Judge David Gustafson might be to the penitent, he warns JD that if he tries a recon to frivol again, the chop might be even heavier.

Taishoff says JD, see that lamp? There’s your chance; don’t blow it.

*Jack Donald Supinger 10957-20 10 29 21