10th Cir rules against TP (Wheeler)

[jcolvin2]

http://www.ca10.uscourts.gov/opinions/07/07-9005.pdf

The frivolous litigation penalty imposed by the Tax Court (despite the TP having prevailed on two minor penalty issues because the IRS did not meet its burden of production) was upheld.

The government sought $8,000 in sanctions against the Wheeler for pursuing a frivolous appeal. While I have not read the underlying brief, if it is consistent with other appellate cases, it is an estimated amount of CIR/DOJ time/expense for dealing with TP cases. The Tenth Circuit ruled:

Because we are affirming the Tax Court’s decision, we have discretion to
award the Commissioner “just damages for his delay, and single or double costs.”
28 U.S.C. § 1912; see Casper v. Comm’r, 805 F.2d 902, 906 (10th Cir. 1986).1
And because this appeal is frivolous, we have discretion to require Mr. Wheeler
to pay “a penalty” to the Commissioner, see 26 U.S.C. § 7482(c)(4), and
we may award the Commissioner “just damages and single or double costs,”
Fed. R. App. P. 38; see Casper, 805 F.2d at 906. This court also “has the
inherent power to impose sanctions to regulate the docket, promote judicial
efficiency and to deter frivolous filings.” Casper, 805 F.2d at 906. The fact that Mr. Wheeler is appearing pro se does not insulate him from the imposition of
sanctions. See id.

Although the Commissioner filed a separate motion for sanctions in
accordance with Rule 38, we are unpersuaded that he has adequate factual support
for the $8,000 lump sum he requests under any of the authorities upon which he
relies. Therefore, the motion is denied.

The Tax Court’s decision is AFFIRMED. The Commissioner’s motion for
sanctions is DENIED.

[Brian Rookard]

This thread is apparently titled wrong ... no sanctions = "win".