Opinion
5212-23L
07-25-2023
DARRYL COOPER, SR., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL AND DECISION
Adam B. Landy Special Trial Judge
On March 15, 2023, the Commissioner issued to Mr. Cooper a Notice of Determination Concerning Collection Actions under IRC Sections 6320 or 6330 of the Internal Revenue Code (notice of determination), sustaining a proposed levy action for taxable years 2012 through 2015 and 2018 (tax years at issue). On April 10, 2023, the Court received an electronically filed Petition from Mr. Cooper for review of the notice of determination. In the Petition, Mr. Cooper provides an attachment that makes statements that are frivolous and groundless in nature. Mr. Cooper resided in Maryland at the time the Petition was filed.
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
On May 15, 2023, the Commissioner filed a Motion to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted and to Impose a Penalty Under I.R.C. § 6673. In the motion to dismiss, the Commissioner argues that Mr. Cooper failed to clearly and concisely state any facts or errors made by the IRS during the collection due process proceeding, and Mr. Cooper simply articulates frivolous and groundless arguments.
By Order served June 12, 2023, the Court directed Mr. Cooper to file an Objection, if any, to the Commissioner's motion to dismiss on or before July 3, 2023. That Order also invited Mr. Cooper to file a proper Amended Petition setting forth clear and concise assignments of each and every error that he alleges to have been committed by the IRS in the collection action in dispute, and clear and concise lettered statements of the facts on which he bases the assignments of error. Mr. Cooper filed an Objection to the Commissioner's motion reciting that the same tax protestor rhetoric as previously stated in the Petition. By Order served July 25, 2023, the Commissioner's motion to dismiss was assigned to the undersigned for disposition.
Rule 40 provides that a party may file a motion to dismiss for failure to state a claim upon which relief can be granted. The Court may grant such a motion when it appears beyond doubt that the moving party's adversary can prove no set of facts in support of a claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Price v. Moody, 677 F.2d 676, 677 (8th Cir. 1982).
Rule 331(b)(4) requires that a petition filed contain clear and concise assignments of each and every error that the taxpayer alleges to have been committed by the IRS in the notice of determination. See Gordon v. Commissioner, 73 T.C. 736, 739 (1980). Rule 331(b)(5) further requires that the petition contain clear and concise lettered statements of the facts on which the taxpayer bases the assignments of error. Any error not raised in the assignments of error is deemed to be conceded. Rule 331(b)(4). In Pierson v. Commissioner, 115 T.C. 576 (2000), the Court acknowledged and enforced the pleading requirements prescribed in Rule 331(b) and dismissed a petition in a collection case on the ground that the taxpayer had failed to state a claim for relief.
The Petition herein does not satisfy the requirements of Rule 331(b)(4) and (5). Mr. Cooper has failed to present a valid challenge to the appropriateness of the IRS's collection action or offer any alternative means of collection. Because the Petition contains nothing but frivolous and groundless arguments, the Court sees no need to catalog Mr. Cooper's arguments and address them. As the Court of Appeals for the Fifth Circuit has remarked: "We perceive no need to refute these arguments with somber reasoning and copious citation of precedent; to do so might suggest that these arguments have some colorable merit." Crain v. Commissioner, 737 F.2d 1417 (5th Cir. 1984); see also Wnuck v. Commissioner, 136 T.C. 498, 511 (2011)("peddlers of frivolous anti-tax positions and their clients who file petitions advancing those positions should not be allowed to divert and drain away resources that ought to be devoted to bona fide disputes.").
In the absence of a valid issue for review, we agree with the Commissioner that Mr. Cooper has failed to state a claim upon which relief may be granted. Furthermore, Mr. Cooper failed to take advantage of this opportunity to file an Amended Petition. Accordingly, we shall grant the Commissioner's motion to dismiss.
The Court takes this opportunity to inform Mr. Cooper that it may impose an additional penalty of up to $25,000 if he institutes or maintains a frivolous or groundless position or institutes or maintains a proceeding in this Court primarily for delay. See I.R.C. § 6673(a)(1). It appears that this is Mr. Cooper's first offense, and as such, the Court will not impose a penalty at this time. Although a section 6673 penalty will not be imposed, Mr. Cooper is admonished that the Court will consider imposing such a penalty in the future if he files a petition commencing another case asserting the same or similar tax protester rhetoric. See Pierson, 115 T.C. at 581.
Upon due consideration of the Commissioner's motion, Mr. Cooper's objection, and for cause, it is
ORDERED that the Commissioner's Motion to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted and to Impose a Penalty Under I.R.C. § 6673, filed May 15, 2023, is granted insofar as this case is dismissed on the stated ground, but denied in part insofar as it relates to the imposition of the section 6673 penalty. It is further
ORDERED AND DECIDED that the Notice of Determination Concerning Collection Actions under IRC Sections 6320 or 6330 of the Internal Revenue Code, dated March 15, 2023, upon which this case is based, is sustained.