Brian G. Takaba - Page 20




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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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