Or Swings?

I have commented often on the varieties of warnings Tax Court Judges and STJs issue before imposing a Section 6673 frivolity/delay chop. At all, or almost all, times, I noted that judges need broad discretion how to run their courtrooms and trial parts; micromanagement is as bad as unbridled discretion.

But I’m puzzled. Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan withholds Sir W. S. Gilbert’s “cheap and chippy chopper on the big black block” from Curtis B. Leiss, Docket No. 11421-23, filed 9/12/24, for the second time.

Curtis was before Ch J TBS before, in Docket No. 16613-22, filed 1/17/23, which I didn’t blog; it was much of a muchness with the usual defier/protester gibberish, with which I won’t burden myself, much less my readers. Ch J TBS did show Curtis the Section 6673 yellow card then.

So why no chop here?

“Among other things, respondent argues that such a penalty is appropriate here because petitioner has advanced frivolous and groundless positions in this case and in a previous case before this Court at Docket No. 16613-22. As respondent notes, the Court declined in petitioner’s previous case to impose a penalty but admonished petitioner that such a penalty may be imposed in future cases commenced by petitioner advancing frivolous and groundless positions. We agree with respondent that the positions advanced by petitioner in this case are frivolous and groundless but will decline to impose a penalty under section 6673(a) at this time.” Order, at p. 3.

Curtis does get a further admonition. “Nonetheless, petitioner is again admonished that that future submissions advancing a frivolous or groundless position may result in the imposition of such a penalty.” Ibid., as my expensive colleagues would say.

I am compelled to ask a question and make a comment. Question: Does the Ch J believe that this second admonition will effect any greater deterrence than the first? Comment: As I have said before, some defier/protester, chopped after one warning with a Section 6673 mulct, will claim the imposition is arbitrary and capricious, as Curtis got two (count ’em, two) admonitions. Will the Supremes use this as another opportunity to “bring discipline” to Tax Court?