It seems that every day is Rounders’ Day at 400 Second Street, NW. And Judge Gustafson certainly gets his share.

See my blogpost “Rounders’ Day – A Holiday?”, 9/9/16. Well, even though I’ve had a great day at the PwC International Tax forum and visiting family in the Magnolia City, I must chronicle the return of two rounders.

First is Frances M. Scott & Galen M. Anderson, Docket No. 26717-14, filed 11/3/16. Fran & Galen gave that Obliging Jurist Judge David Gustafson a chance to blow off some attempted rounderdom, culminating with Fran & Galen attempting to dismiss their petition, which falls into the “own goal” category, in the abovecited blogpost.

Thereafter, Judge Gustafson granted IRS’ motion to dismiss for want of prosecution. After that order, Fran & Galen file an objection. In today’s action, Judge Gustafson, obliging as always, gives Fran & Galen a two-for-one: he treats that as a motion to vacate, which he grants and a motion to reconsider, which he denies.

Fran & Galen, nowise daunted, attempt to stall everything by filing a notice of appeal to CCA 10. But since no decision had then been entered, there is only an interlocutory appeal available. And unless Judge Gustafson orders a stay, the interlocutory appeal stays nothing in Tax Court.

Judge Gustafson is not so obliging as to grant Fran & Galen a stay.

But he does vacate the order dismissing their petition for want of prosecution. Why?

“However, we will not yet re-enter decision in this case, because we now will consider whether to include in that decision the imposition of a penalty under section 6673(a)–something about which we warned petitioners in our order dated September 8, 2016. Section 6673(a)(1) provides that where proceedings are ‘instituted or maintained by the taxpayer primarily for delay’ or where ‘the taxpayer’s position … is frivolous or groundless, … the Tax Court, in its decision, may require the taxpayer to pay to the United States a penalty not in excess of $25,000.” Order, at p. 5.

So Fran & Galen can show cause why Judge Gustafson should not unload a $25K frivolity chop.

Next in line is Rodney W. Gattie, Docket No. 7077-15, filed 11/3/16. Rod was the number two player in my abovecited blogpost, and here he is again.

Rod was a Methodist minister and an insurance salesman. Whatever parallels one might draw therefrom, Rod drew money from both and got an SFR, to which he responded with a 1040EZ showing all zeros except for the withholding he wanted refunded.

As more fully set forth in my abovecited blogpost, Rod got the Section 6673 yellow card.

On the trial before Judge Gustafson, Rod kept up the frivolity, despite warnings.

Judge Gustafson, aweary of these tactics, unloads in this off-the-bencher.

“Mr. Gattie has raised frivolous arguments in prior proceedings before this Court and is thus a ’repeat offender’. He was warned that his arguments were frivolous and that raising such arguments could lead to the imposition of penalties–warned not only by the IRS but also by this Court in his prior case and in this very case; but he ignored or defied those warnings. He did not raise any non-frivolous arguments in addition to his frivolous arguments. His conduct imposed on the IRS and the Court a substantial undue burden to adjudicate his case. Until the 11th hour he refused to stipulate facts that in fact he could not dispute. And he has made no pretense of intending to comply with tax laws in the future.

“Taking into account all the facts and circumstances, we impose a penalty of $12,500–half of the maximum possible penalty–and we warn Mr. Gattie that if he should repeat this conduct in the future, the penalty can go up to $25,000.” Order, at p. 10.



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