Brendt L. Smith - Page 16

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          portion of the underpayment in either year was not attributable             
          to fraud.  Therefore, we will sustain in full respondent’s                  
          determinations of fraud for both years.                                     
          Section 6673 Penalty                                                        
               We note that section 6673(a)(1) authorizes the Court to                
          require a taxpayer who has instituted or maintained a proceeding            
          primarily for delay, or whose position is frivolous or                      
          groundless, to pay a penalty to the United States.  See Williams            
          v. Commissioner, 119 T.C. 276, 280-281 (2002); Bagby v.                     
          Commissioner, 102 T.C. 596, 614 (1994); Stamos v. Commissioner,             
          95 T.C. 624, 638 (1990), affd. without published opinion 956 F.2d           
          1168 (9th Cir. 1992).  The Court may consider the imposition of             
          such a penalty sua sponte.  See, e.g., Jones v. Commissioner,               
          T.C. Memo. 2003-131; Hawes v. Commissioner, T.C. Memo. 1999-152;            
          Bierhaalder v. Commissioner, T.C. Memo. 1993-164, affd. without             
          published opinion 16 F.3d 415 (10th Cir. 1994).                             
          As our previous discussion indicates, petitioner’s failure                  
          to engage in any meaningful pretrial preparation, his failure to            
          appear for trial, and his other efforts to protract this                    
          proceeding are evidence that he instituted and maintained it                
          primarily for delay.  Respondent has not sought a penalty under             
          section 6673(a)(1), however, and we will not impose one in these            
          circumstances.  Petitioner is nonetheless cautioned that should             








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