Robert J. Geiger - Page 8




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               By motion made at the conclusion of trial, respondent                   
          requests the Court to impose a penalty on petitioner under                   
          section 6673(a).  Section 6673(a)(1) authorizes the Tax Court to             
          require a taxpayer to pay a penalty not to exceed $25,000 if the             
          proceedings have been instituted or maintained by the taxpayer               
          primarily for delay or if the taxpayer's position in such                    
          proceeding is frivolous or groundless.  Sec. 6673(a)(1)(A) and               
          (B).  A position maintained by the taxpayer is "frivolous" where             
          it is "contrary to established law and unsupported by a reasoned,            
          colorable argument for change in the law."  Coleman v.                       
          Commissioner, 791 F.2d 68, 71 (7th Cir. 1986).                               
               Petitioner's pretrial correspondence to respondent contained            
          arguments that are typically deemed frivolous for purposes of                
          section 6673(a).  The objectionable arguments, however, are                  
          contained in documents introduced into evidence not by                       
          petitioner, but by respondent.  Petitioner's position in this                
          case focused almost entirely on issues related to the burden of              
          proof, demonstrated by his ill-fated strategy to proceed as                  
          though it did not rest with him.  Although we consider                       
          petitioner's position on the point to be tenuous, we do not                  
          consider it to be frivolous within the meaning of section                    
          6673(a).  Respondent's motion for a penalty under that section               
          will therefore be denied.                                                    
               To reflect the foregoing,                                               
                                              An appropriate order and                 
                                        decision will be entered.                      

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