David J. and Jo Dena Johnson - Page 26




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          underlying tax liability may be found to have done so “primarily             
          for delay” and hit with a penalty of up to $25,000 under section             
          6673(a)(1)(A).  Anyone admitted to practice in this Court who                
          files such a petition may be found to have “multiplied the                   
          proceedings * * * unreasonably and vexatiously” under section                
          6673(a)(2) and required to “pay personally the excess costs,                 
          expenses, and attorneys’ fees reasonably incurred because of such            
          conduct”.3                                                                   
               It’s beyond cavil that courts of limited jurisdiction,                  
          including the Tax Court, have inherent power to protect their                
          processes from abuse by awarding sanctions and costs even though             
          they lack jurisdiction over the underlying dispute.  Willy v.                
          Coastal Corp., 503 U.S. 131 (1992) (sanctions under Fed. R. Civ.             
          P. 11, allowed even though case dismissed for want of subject                
          matter jurisdiction); Cooter & Gell v. Hartmarx Corp., 496 U.S.              
          384 (1990) (same where complaint voluntarily dismissed before                


               3 Taxpayers in frivolous return penalty and employment tax              
          penalty cases who wish to dispute the Commissioner’s collection              
          determination are already being put on notice that they should               
          file a complaint with the appropriate district court.  Following             
          our opinion in Van Es v. Commissioner, 115 T.C. 324 (2000), the              
          Commissioner apparently changed the form of notice of                        
          determination in frivolous return penalty collection cases to                
          tell the taxpayer to file a complaint in the appropriate district            
          court.  The notice of determination in the case at hand so                   
          stated, but petitioners disregarded the notice and filed a                   
          petition with the Tax Court.  Similarly, the taxpayer in Moore v.            
          Commissioner, 114 T.C. 171 (2000), an employment tax penalty                 
          collection case, disregarded the instruction in the notice of                
          determination to file a complaint in the appropriate district                
          court.                                                                       





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