Applying Count Basie’s terminology to repurpose an old favorite, that’s Judge Tamara Ashford’s suggestion to Christopher Crumedy, T. C. Memo. 2024-19, if he wishes to repent of frivolity and escape the Section 6702 $5K frivolity return chop.

Chris frivoled by filing two (count ’em, two) Forms 1040 for year at issue, claiming no salaries, wages, etc. (although he did have same), claiming some withholding, and trying to turn the 1040-V payment voucher into a draft on the withholders.  T. C. Memo. 2024-19, at p. 2. This got Chris the frivolity warning and an imposition of the Section 6702 chop, which Chris petitioned.

There was a remand to consider the underlying liability, as Section 6702 are assessable, no SNOD needed. But Chris only faxed copies of some correspondence with IRS without explanation to the AO.  Chris claims these were his attempts to withdraw his allegedly frivolous returns.

So the confirmation of the NITL stands as to the underlying liability, because Chris did not meaningfully contest it.

“Petitioner seems to question only whether the IRS made a lawful assessment of the section 6702(a) penalties because in his view he was entitled to withdraw the [year at issue] returns that the IRS received… and in fact had attempted to do so. In support of his position, petitioner relies on section 6702(b)(3) and the two exhibits attached to his CDP hearing request, which were copies of the two assessment notices on which he had added a typed statement requesting withdrawal of each return the IRS had received….” T. C. 2024-19, at p. 11. (Footnote omitted, but it says Chris unsuccessfully tried the Section 6751(b) Boss Hoss gambit.)

The attempted withdrawal doesn’t work. Section 6702(b)(3) only allows withdrawal of “‘specified frivolous submissions,’ which are defined in section 6702(b)(2)(B) as CDP hearing requests and applications under section 6159 (relating to written installment payment agreements), section 7122 (relating to compromises), and section 7811 (relating to taxpayer assistance orders); and (2) section 6702(b)(3) provides a circumstance, i.e., allowing a taxpayer to withdraw his ‘specified frivolous submission,’ which results in the section 6702(b) penalty not applying with respect to that submission. The penalties against petitioner were not assessed under section 6702(b) but rather under section 6702(a) for having filed frivolous tax returns for 2017. Petitioner never made a ‘specified frivolous submission’ as that term is defined in section 6702(b)(2)(B).” T. C. Memo. 2024-19, at pp. 11-12.

If you’re going to frivol, be specific.