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In Harper v. Commissioner, supra, we found that, while most
Courts of Appeals require a finding of bad faith as a condition
for imposing sanctions under 28 U.S.C. sec. 1927 (1988), a few
have adopted the lower threshold of recklessness. Harper v.
Commissioner, supra at 545-546. Among those few is the Court of
Appeals for the District of Columbia Circuit. See Reliance Ins.
Co. v. Sweeney Corp., 792 F.2d 1137, 1138 (D.C. Cir. 1986). The
venue for appeal of the sanctions we imposed on Mr. Sulla may be
to that Court of Appeals. See sec. 7482(b)(1) (second sentence).
But compare Johnson v. Commissioner, supra (affirming Tax Court’s
imposition of section 6673(a)(2) liability without discussion of
venue), with Dornbusch v. Commissioner, 860 F.2d 611 (5th Cir.
1988) (appellate venue lies in the Court of Appeals for the
District of Columbia Circuit under the second sentence of section
7482(b)(1) in the case of an appeal of a criminal contempt
sentence imposed on a witness by the Tax Court).4 If the
appellate venue for Mr. Sulla is not the Court of Appeals for the
District of Columbia Circuit, it is likely the Court of Appeals
for the Ninth Circuit. See sec. 7482(b)(1)(A). The Court of
Appeals for the Ninth Circuit has occasionally stated that
4 In Johnson v. Commissioner, 289 F.3d 452 (7th Cir. 2002),
affg. 116 T.C. 111 (2001), the Court of Appeals for the Seventh
Circuit may have been the appropriate venue for appeal pursuant
to sec. 7482(b)(2), which allows an appeal to any U.S. Court of
Appeals if agreed to in writing by the Secretary and the
taxpayer.
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