Stephen V. Talmage - Page 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           
               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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