Johnson v. Commissioner

The Internal Revenue Service (IRS) issued a deficiency notice to Shirley Johnson (plaintiff), which Johnson challenged via a pro se petition with the United States Tax Court against the IRS commissioner (defendant). Johnson subsequently hired Texas attorney Joe Izen to represent her. Johnson proceeded to disregard her discovery obligations. For example, Johnson initially ignored the commissioner’s interrogatories before citing the Fifth Amendment to the United States Constitution in response to most of the interrogatories. Johnson also missed discovery deadlines, citing her health problems and Izen’s busy schedule, and repeatedly produced the same incorrect documents to the commissioner. Johnson’s conduct echoed similar discovery failures by Izen’s clients in other Tax Court cases. In April 2000, the Tax Court ruled that Izen had unreasonably and vexatiously multiplied the proceedings in violation of Internal Revenue Code (code) § 6673(a)(2). In November, Izen certified that Johnson’s trial brief was served on November 22 despite the brief being due on November 17 and being postmarked November 27. Additionally, Izen submitted Johnson’s deposition testimony as evidence even though Izen deposed Johnson with inadequate notice to the IRS. The Tax Court ultimately sanctioned Izen $9,394 to compensate the IRS for the fees it incurred in seeking compliance with certain discovery requests and dismissed Johnson’s petition for the failure to prosecute. Izen appealed, arguing that § 6673(a)(2) violated his right to equal protection because it purportedly exempted government attorneys, but not private attorneys, from personal liability. Izen also argued that the Tax Court improperly (1) found that he engaged in the requisite bad faith based on his conduct in other cases and (2) sanctioned him for Johnson’s frivolous invocations of the Fifth Amendment.