Opinion
2392-23
06-08-2023
MARK J. GENDLE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL
Peter J. Panuthos, Special Trial Judge
This case is before the Court on respondent's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, filed April 5, 2023. Petitioner resided in the state of Arizona at the time the Petition was filed. On January 24, 2023, the Court received from petitioner a letter where petitioner states, among other things, that he is a "lawful nontaxpayer" and "[t]his letter is therefore not a petition but a simple request for a docket number." In his motion to dismiss, respondent asserts that petitioner's arguments are frivolous, citing Funk v. Commissioner, 123 T.C. 213, 214-16 (2004). Petitioner filed a Response to Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, on April 17, 2023. By Order served May 9, 2023, respondent's motion to dismiss was assigned to the undersigned for disposition.
Rule 401 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 party's adversary can prove no set of facts in support of a claim that would entitle him to relief. Rule 40; Conley v. Gibson, 355 U.S. 41, 45 - 46 (1957).
A petition must contain clear and concise assignment of each and every error that the taxpayer alleges to have been committed by respondent in the determination of the deficiency and penalty in dispute. See Rule 34(b)(1)(G); Gordon v. Commissioner, 73 T.C. 736, 739 (1980). Tax Court rules further require that the petition contain clear and concise lettered statements of the facts on which the taxpayer bases the assignments of error. See Rule 34(b)(1)(H); Jarvis v. Commissioner, 78 T.C. 646, 658 (1982).
Any issue not raised in the assignments of error is deemed to be conceded. Rule 34(b)(1)(G); Jarvis v. Commissioner, 78 T.C. at 658 n.19; Gordon v. Commissioner, 73 T.C. at 739. Further, the failure of a party to plead or otherwise proceed as provided in the Court's Rules may be grounds for the Court to hold such a party in default, either on the motion of another party or on the initiative of the Court. Rule 123(a). Similarly, the failure of a petition to conform to the requirements set forth in Rule 34 may be grounds for dismissal. See Rules 34(a)(1), 123(b).
Giving petitioner the benefit of every doubt as the Court is required to do at this stage of the proceedings, the Court finds that the Petition in this case contains no or insufficient facts that support the claim for relief made in that pleading. See Hicks v. Small, 69 F.3d 967, 969 (9th Cir. 1995). Rather, the Petition appears to be merely an expression of protest and does not contain anything but frivolous and groundless arguments. A petition to the Court is frivolous "if it is contrary to established law and unsupported by a reasoned, colorable argument for change in the law." Coleman v. Commissioner, 791 F.2d 68, 71 (1986).
Under the circumstances there is no need to catalog petitioner's arguments and painstakingly address them. See Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984) ("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"). Further, petitioner's response similarly makes frivolous and groundless arguments in the form of tax protester rhetoric that the Court will not address further. We also note that petitioner has made similar frivolous arguments in a petition filed at Docket No. 27835-22. That petition was dismissed when petitioner failed to pay the filing fee.
Because petitioner fails to state a claim upon which relief can be granted, the Court shall grant respondent's motion to dismiss seeking dismissal of this case. See Rules 34(a)(1), 123(b). The Court takes this opportunity to inform petitioner that we may impose an additional penalty of up to $25,000 if he institutes or maintains a frivolous or groundless petition. § 6673(a)(1). Although a section 6673 penalty will not be imposed here, petitioner is admonished that the Court will consider imposing such a penalty in future cases if petitioner files additional pleadings in this case or again files another petition and begins another case asserting the same tax protester rhetoric.
Upon due consideration, it is
ORDERED that respondent's Motion To Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, filed April 5, 2023, is granted, and this case is dismissed on the stated ground.