-18-
for change in the law. Coleman v. Commissioner, 791 F.2d at 71.4
Under this standard, petitioner's section 83 argument is
frivolous, and independently justifies imposition of a section
6673 penalty on that ground.
Because, as we have said, we suspect that petitioner's
primary motivation is protest, we cannot consistently say that he
instituted or maintained this proceeding primarily for delay.
Respondent claims that petitioner's primary purpose was delay;
petitioner's conduct has certainly caused a great deal of delay
in the case, preventing earlier dismissal for failure to state a
claim and thereby wasting the time both of this Court and of
respondent. But that is not to say that his primary purpose was
delay. Indeed, we believe that, while it was one of his
purposes, it was not primary. Section 6673(a)(1)(A) therefore
does not justify imposing a penalty on him. Because, however,
petitioner's position in this proceeding is frivolous or
groundless, section 6673(a)(1)(B) justifies imposing a penalty on
him.
Petitioner cannot claim that a penalty is unexpected. We
repeatedly warned him that he ran the risk of incurring a penalty
4Under Fed. R. Civ. P. 11, the rule for determining whether
a complaint is frivolous has been stated to be whether it has
absolutely no chance of success under existing precedents.
Brubaker v. City of Richmond, 943 F.2d 1363, 1373, 1377, 1378,
1385 (4th Cir. 1991); Cleveland Demolition Co. v. Azcon Scrap
Corp., 827 F.2d 984, 988 (4th Cir. 1987). Cf. Morley v. Ciba-
Geigy Corp., 66 F.3d 21, 25 (2d Cir. 1995); Caisse Nationale de
Credit Agricole-CNCA, New York Branch v. Valcorp, Inc., 28 F.3d
259, 264 (2d Cir. 1994).
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