In Uncategorized on 12/22/2021 at 15:58

Tax Court is celebrating this pre-festival Palindrome Day by issuing no opinions, and the orders, though many, are routine. So I want to use this caesura to climb once more on my little soapbox to agitate for guidelines when Section 6673 frivolity chops are on the menu. For some backstory, see my blogpost “Guidelines,” 8/12/21.

Here’s the routine warning for first-timers, with which I entirely concur, in Kendra Nicole Scarborough, Docket No. 12198-20, filed 12/22/21*, from Ch J Maurice B (“Mighty Mo”) Foley: “Petitioner’s attention is invited to I.R.C. section 6673(a). If it appears to the Court that a taxpayer’s position in a proceeding before the Court is frivolous or groundless, then the Court can impose a penalty (not to exceed $25,000) on that taxpayer. Petitioner is advised that it appears to the Court that the position she has taken in this case is frivolous or groundless. No penalty will be imposed at this time. However, future submissions advancing a frivolous or groundless position will result in the imposition of a penalty.” Order, at p. 1.

Ch J Mighty Mo doesn’t tell us what delictions Ms Scarborough committed, but that’s tangential. Ms. Scarborough has been warned that whatever she alleged has consequences beyond the mere dismissal of her petition, as happened here.

But beyond that lies a broad, uncharted expanse. Is it $25, $250, $2500, or $25,000? Does the axe fall at petition, motion, discovery, pretrial memo, or trial?

I’m slightly surprised that no wit, wag, or wiseacre, mulcted in four figures for frivolity, doesn’t use the newly-enabled Orders search feature on the DAWSON site to accumulate a bunch orders (hi, Judge Holmes), chopping various petitioners in widely varying amounts for the same, or nearly the same, offenses, and thereby claim abuse of discretion, or excessive fines and penalties, when the chop descends upon them.

I’m not saying that judges can’t have broad discretion to control their courtrooms or prevent contumacious tactics. And I’m not debating the wisdom or otherwise of sentencing guidelines, or mandatory minimum and maximum sentences. It’s not the province of either the executive or the legislative branch to reduce the judiciary to mere puppets.

What I am saying is that a certain consistency is not the hobgoblin of small minds, when penalties imposed vary so widely, with no guidance whatever either to the judge or the frivolite. And I most respectfully suggest the Tax Court bench ponder the suggestion that there should be.

*Kendrta Nicole Scarborough Docket No 12198-20 12 22 21


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