On April 15, 2009, the Court received a letter from petitioner in which he claimed that his counsel, Jerold W. Barringer (Barringer), had failed to communicate with him. The letter stated in part: "I am in the process of preparing motions, the purpose of which is to obtain postponement of the scheduled trial date so I can retain another lawyer, complete Discovery and otherwise prepare for trial."

When the case was called on April 20, 2009, petitioner's letter was filed as a motion to withdraw counsel. Barringer stated:

We've had a breakdown of communication. I have, in fact, sent emails to Mr. Powell, as well as left phone messages 2009 Tax Ct. Memo LEXIS 171">*179 for him, but we have different theories about where this case is going or what this case could do, and for some time now I've not been able to pursue the issues he wants to pursue, so I don't know how I can represent what he wants to do. I have a different theory of where the case could conceivably go, but I don't know whether he wants to go that route.

Petitioner proceeded pro se and persisted in his demands for discovery and a continuance. He submitted an Offer of Proof in which he set forth his frivolous arguments that he is not an individual required to file income tax returns or pay taxes and complained of the denial of a face-to-face hearing and denial of discovery. He did not raise any issue of material fact precluding summary judgment.

Barringer's Response and Objection to Motion For 6673 Sanctions and Response to Request 2009 Tax Ct. Memo LEXIS 171">*180 for Attorneys Fees was filed May 20, 2009. He challenges the validity of the assessment and other documents on the alleged absence of appropriate signatures by IRS personnel. He claims that respondent was obligated to produce a Form 23C, Assessment Certificate--Summary Record of Assessments, and copies of the notices of deficiency petitioner requested as a pro se, even though Barringer has acknowledged to respondent's counsel that petitioner received the notices of deficiency. He insists that the discovery was appropriate because "Petitioner has sought to know exactly how all the provisions of the I.R.C. apply to him", but he asserts that "Petitioner would not have agreed to any issue, ever, as demonstrated in open court on April 20, 2009." The latter statement is made in support of Barringer's argument that counsel's involvement was not the cause of the time expended by respondent's counsel that is the basis of the claim under section 6673(a)(2).

Petitioner has not been deterred by the multiple warnings that his arguments are frivolous, and his former counsel argues, persuasively, that petitioner would never give up his arguments.

Despite repeated warnings by respondent and 2009 Tax Ct. Memo LEXIS 171">*181 the Court, petitioner continues to maintain the same frivolous positions and to impose extra burdens on respondent in pursuing matters where there is no reasonable dispute. Arguments that compensation for services is not taxable have been repeatedly and thoroughly rejected in cases too numerous to mention. Arguments such as those pursued by petitioner have resulted in criminal convictions, e.g., United States v. Sloan, 939 F.2d 499">939 F.2d 499 (7th Cir. 1991); United States v. Collins, 920 F.2d 619">920 F.2d 619 (10th Cir. 1990); civil fraud penalties, e.g., Rowlee v. Commissioner, 80 T.C. 1111">80 T.C. 1111 (1983); Chase v. Commissioner, T.C. Memo 2004-142; section 6673 penalties, e.g., Sawukaytis v. Commissioner, T.C. Memo 2002-156, affd. 102 Fed. Appx. 29">102 Fed. Appx. 29 (6th Cir. 2004); and sanctions for frivolous appeals, e.g., Martin v. Commissioner, 756 F.2d 38">756 F.2d 38 (6th Cir. 1985), affg. T.C. Memo. 1983-473; Perkins v. Commissioner, 746 F.2d 1187">746 F.2d 1187 (6th Cir. 1984), affg. T.C. Memo. 1983-474. In any event, arguments about his underlying liability for the taxes were precluded by section 6330(c)(2)(B) because petitioner received notices of deficiency for the years in dispute.

In the context of cases brought under section 6330, procedural 2009 Tax Ct. Memo LEXIS 171">*182 arguments such as those made by petitioner and now by Barringer have been refuted repeatedly. See, e.g., Roberts v. Commissioner, 118 T.C. 365">118 T.C. 365, 118 T.C. 365">372-373 (2002) (and cases cited thereat) (section 6673 penalty imposed on the taxpayer, who had been counsel in prior cases), affd. 329 F.3d 1224">329 F.3d 1224 (11th Cir. 2003); see also Craig v. Commissioner, 119 T.C. 252">119 T.C. 252, 119 T.C. 252">261-264 (2002); Pierson v. Commissioner, 115 T.C. 576">115 T.C. 576, 115 T.C. 576">579-580 (2000); Davis v. Commissioner, 115 T.C. 35">115 T.C. 35 (2000). The arguments made and the cases rejecting them are cited in the IRS publication, "The Truth About Frivolous Tax Arguments", sec. II (Feb. 1, 2009), available on the IRS Web site at www.irs.gov, which petitioner acknowledges reviewing. Under the circumstances, petitioner did not have a right to a face-to-face hearing. See Lunsford v. Commissioner, 117 T.C. 183">117 T.C. 183 (2001). (Because of the demonstrated abuses of the section 6330 procedures, in the Tax Relief and Health Care Act of 2006, Pub. L. 109-432, div. A, sec. 407(a), 120 Stat. 2960, Congress has added a penalty for frivolous submissions including submissions under section 6330. Sec. 6702(b)(2)(B)(i)(II); see Notice 2008-14, 2008-1 C.B. 310.)

Neither petitioner nor Barringer 2009 Tax Ct. Memo LEXIS 171">*183 acknowledges the authorities showing that their arguments are totally lacking in merit and have no likelihood of success. In similar circumstances in United States v. Patridge, 507 F.3d 1092">507 F.3d 1092, 507 F.3d 1092">1095-1097 (7th Cir. 2007), the Court of Appeals described Barringer's "inability to distinguish between plausible and preposterous arguments" and characterized him as a "recidivist" for ignoring that court's "2006 decision reminding him that taxpayers cannot use a request for a collection hearing to contest their substantive liability." In the absence of any acknowledgment of current law, there is no indication of a good-faith attempt to change it. See Rule 201(a); Model Rules of Profl. Conduct R. 3.1 (2008). We conclude that Barringer was adequately warned yet persisted. Thus his conduct was reckless and in bad faith. See Takaba v. Commissioner, 119 T.C. 285">119 T.C. 285 (2002); Davis v. Commissioner, T.C. Memo 2007-201, affd. 301 Fed. Appx. 398">301 Fed. Appx. 398 (6th Cir. 2008); Gillespie v. Commissioner, T.C. Memo 2007-202, affd. 292 Fed. Appx. 517">292 Fed. Appx. 517 (7th Cir. 2008); Edwards v. Commissioner, T.C. Memo 2003-149, affd. 119 Fed. Appx. 293">119 Fed. Appx. 293 (D.C. Cir. 2005).

According to Barringer, all of his conduct in this case was consistent 2009 Tax Ct. Memo LEXIS 171">*184 with demands of petitioner. Petitioner's conduct while acting pro se was totally groundless and patently for the purpose of delay. On the entire record, a penalty will be awarded against petitioner in the amount of $ 25,000.

Respondent's itemization claims 36.25 hours as "excess hours attributable to the involvement of petitioner's counsel" and includes time for preparation of the second motion for summary judgment, time spent as a result of the frivolous discovery requests sent by Barringer after he entered his appearance in the case, and time spent in response to the Court's order to show cause. Respondent sets out the time and experience of various attorneys and proposes rates previously adopted by the Court. See 119 T.C. 285">Takaba v. Commissioner, supra at 303-305; Harper v. Commissioner, 99 T.C. 533">99 T.C. 533, 99 T.C. 533">551 (1992).

Barringer claims that the time spent in relation to the second motion for summary judgment would have been necessary even without his involvement. He attempts to excuse his submission of the interrogatories on the basis that they were demanded by his client. He does not dispute the reasonableness of the hourly rates suggested for the various attorneys based on their experience.

In denying 2009 Tax Ct. Memo LEXIS 171">*185 the first motion for summary judgment, the Court expressly stated that satisfaction of the requirements of section 6330 should be demonstrated at trial rather than in a summary adjudication. The case was submitted on the second motion for summary judgment at the time of trial because petitioner offered only the same stale frivolous arguments he had pursued from the beginning of the administrative proceedings and did not demonstrate any remaining material issues of fact. The same result would have been achieved without the second motion for summary judgment. We do not accept Barringer's argument that the second motion for summary judgment would have been necessary without his involvement. We believe that it was unnecessary with or without his involvement. It was a choice by respondent to disregard the advice of the Court, and we decline to require Barringer to compensate respondent for that choice.

Effecting delay and unnecessary responses through abuse of the discovery process is an appropriate basis for an award under section 6673(a)(2). See Johnson v. Commissioner, 116 T.C. 111">116 T.C. 111 (2001), affd. 289 F.3d 452">289 F.3d 452, 289 F.3d 452">456-457 (7th Cir. 2002). The motion to permit levy was an appropriate response 2009 Tax Ct. Memo LEXIS 171">*186 to the continuance and delays caused by the false representation that Barringer's entry of appearance would lead to reasoned resolution of this case. Costs of supervising counsel are recoverable. See 119 T.C. 285">Takaba v. Commissioner, supra at 304-305. Barringer complains about time spent in consultations among and between respondent's counsel, but that time was appropriate because of respondent's cautious approach to seeking sanctions by reason of counsel's conduct and because the motion to permit levy is not a frequently employed option.

Excluding time spent in preparation of the second motion for summary judgment, we conclude that the recoverable amount reasonably incurred as a result of Barringer's unreasonable and vexatious conduct is 7.5 hours at $ 150 per hour and 18 hours at $ 200 per hour, for a total award of $ 4,725 under section 6673(a)(2).

An appropriate order and decision will be entered.