Opinion
22260-22S
09-21-2023
PAUL WAYNE HARDENBERG, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL AND DECISION
Ronald L. Buch Judge
This case was called from the calendar at the session of the Court at St. Paul, Minnesota, on September 18, 2023, for hearing on the Commissioner's Motion to Dismiss for Failure to Properly Prosecute And To Impose A Penalty Under § 6673, filed August 25, 2023. There was no appearance by or on behalf of Mr. Hardenberg. Counsel for the Commissioner appeared and was heard.
For cause more fully appearing in the transcript of the proceedings, we will grant the Commissioner's Motion, in that we will dismiss this case for failure to properly prosecute. We will deny the Commissioner's motion insofar as it seeks a sanction under section 6673.
Section 6673 authorizes the Court to impose a sanction of up to $25,000 when it appears to the Court that a proceeding has been instituted or maintained primarily for delay or if the taxpayer's position in the proceeding is frivolous or groundless. I.R.C. § 6673(a)(1). Congress enacted this provision principally to deter frivolous litigation. Leyshon v. Commissioner, T.C. Memo. 2015-104, at *18. We have considered a variety of facts and circumstances when deciding whether to impose a sanction. See Leyshon, at *25-30. Those facts and circumstances, as summarized in Leyshon, include (1) prior proceedings, (2) prior warnings, (3) prior penalties, (4) non-frivolous arguments, (5) protest, (6) amount at issue, (7) taxpayer's background, (8) burden, (9) conduct, (10) other harm to the taxpayer, (11) future compliance, (12) punitive and deterrent effects. Id.
We are highly influenced by the first three factors. From the Court's review of its own records, Mr. Hardenberg has not had any prior proceedings in this Court where he has perpetuated frivolous arguments. Although he received warnings in this proceeding, principally from the Commissioner, he was not warned in any prior proceeding. And he has not been penalized in any prior proceeding.
Insofar as this proceeding is concerned, Mr. Hardenberg's activity with the Court has largely been to fail to respond and fail to appear. His initial petition filed with the Court contained frivolous arguments, but since then, he has not filed any frivolous documents or appeared and made frivolous arguments (although, he repeatedly returned the Court's correspondence).
For this proceeding, we will caution Mr. Hardenberg that, in a subsequent proceeding before the Court, two of the first three factors set forth above will weight against him, increasing the likelihood that the Court might sanction him if he continues to perpetuate frivolous arguments.
To give effect to the foregoing, it is
ORDERED that the Commissioner's Motion to Dismiss for Failure to Properly Prosecute, filed August 25, 2023, is granted in part and this case is dismissed for failure to properly prosecute. It is further
ORDERED AND DECIDED that there is a deficiency in income tax due from petitioner for the taxable year 2018 in the amount of $11,626.00; an addition to tax due from petitioner for the taxable year 2018 under the provisions of I.R.C. § 6651(a) (1) in the amount of $2,906.50; no addition to tax due from petitioner for the taxable year 2018 under the provisions of I.R.C. § 6651(a)(2); and an addition to tax due from petitioner for the taxable year 2018 under the provisions of I.R.C. § 6654(a) in the amount of $376.98.