Opinion
22081-22
03-28-2023
EARL W. WERLINE III, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL
Diana L. Leyden 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 November 29, 2022 (motion). Petitioner resided in the state of New Jersey at the time the Petition was filed. On September 30, 2022, petitioner filed a Petition to commence this case, in which he seeks review with respect to his 2018 tax year. Petitioner filed a Response to Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, on December 13, 2022 (response), and a First Amended Petition on December 27, 2022 (amended Petition). On January 23, 2023, respondent filed a First Supplement to Motion to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted (supplement), to which petitioner filed a Response to First Supplement Motion to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted on January 30, 2023 (response to supplement). By Order served February 15, 2023, respondent'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 party's adversary can prove no set of facts in support of a claim that would entitle him to relief. Rule 40; see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
Giving petitioner the benefit of every doubt as the Court is required to do at this stage of the proceedings, see Hicks v. Small, 69 F.3d 967, 969 (9th Cir. 1995), the Court finds that the Petition in this case contains no or insufficient facts that support the claim for relief made in that pleading. 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 not any 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 amended Petition, response, and response to supplement similarly make frivolous and groundless arguments in the form of tax protester rhetoric that the Court will not address further.
Because petitioner's Petition 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 it may impose an additional penalty of up to $25,000 if he institutes or maintains a frivolous or groundless petition or institutes or maintains a proceeding primarily for delay. I.R.C. § 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 and for cause, it is
ORDERED that respondent's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, filed November 29, 2022, as supplemented, is granted and this case is dismissed upon the ground that the Petition fails to state a claim upon which relief can be granted.