Opinion
767-23
06-05-2023
LARNELL NOLAN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge.
On April 21, 2023, petitioner filed a Motion to Strike, in which he seeks to strike portions of the Answer. Motions to strike are not favored by the Federal courts.
A motion to strike should be granted only when the allegations have no possible relation to the controversy. When the court is in doubt whether under any contingency the matter may raise an issue, the motion should be denied. If the matter that is the subject of the motion involves disputed and substantial questions of law, the motion should be denied and the allegations should be determined on the merits. In addition, a motion to strike usually will not be granted unless there is a showing of prejudice to the moving party.Estate of Jephson v. Commissioner, 81 T.C. 999, 1001 (1983)(citations omitted).
On April 21, 2023, petitioner filed a Motion for Leave to Conduct Discovery Pursuant to Rule 70(a)(2), in which petitioner asserts that petitioner commenced discovery through informal communication and respondent refused to participate or cooperate with discovery requests. Attached to the motion is an email that petitioner purportedly sent respondent on Sunday, April 16, 2023, seeking responses to interrogatories, a request for production of documents, and requests for admissions by Wednesday, April 19, 2023. Generally, discovery is between the parties and leave of the Court is not required. Rule 70 et al. Further, the burden is on the party submitting interrogatories or request for documents to move for an order with respect to any objection or failure to respond. Prior to the motion for such an order, the interrogatories, documents, or responses shall not be filed with the Court. See Rule 71(c) and 72(b)(2). Requests for admissions is governed by Rule 90 and, in particular, the party making the request is required to file the original with proof of service to the Court. Petitioner has not complied with the Court's rules.
On April 21, 2023, petitioner filed a Motion for More Definite Statement Pursuant to Rule 51. On May 6, 2023, petitioner filed a Reply to Answer.
Section 6673(a)(1) authorizes the Tax Court to require a taxpayer to pay to the United States a penalty not in excess of $25,000 whenever it appears that proceedings have been instituted or maintained by the taxpayer primarily for delay or that the taxpayer's position in such proceeding is frivolous or groundless. See Wnuck v. Commissioner, 136 T.C. 498, 513-514 (2011) (imposing a section 6673 penalty for tax protester arguments). Considering the allegations in this case in the petition, petitioner's Motion to Strike, petitioner's Motion for Leave to Conduct Discovery Pursuant to Rule 70(a)(2), and petitioner's Motion for More Definite Statement Pursuant to Rule 51, petitioner's position herein is frivolous and groundless. Although the Court will not impose a penalty on petitioner in this case at this time, petitioner is admonished that the Court will strongly consider imposing such a penalty should petitioner advance similar arguments in the future.
Upon due consideration, it is ORDERED that petitioner's Motion to Strike, filed April 21, 2023, is denied. It is further
ORDERED that petitioner's Motion for Leave to Conduct Discovery Pursuant to Rule 70(a)(2), filed April 21, 2023, is denied. It is further
ORDERED that petitioner's Motion for More Definite Statement Pursuant to Rule 51, filed April 21, 2023, is denied.