In the

United States Court of Appeals

For the Seventh Circuit

No. 01-2509

Shirley L. Johnson,

Petitioner,

v.

Commissioner of Internal Revenue,

Respondent-Appellee.

Appeal of Joe Alfred Izen, Jr.

Appeal from the United States Tax Court.

Nos. 6452-99, 6453-99--Mary Ann Cohen, Judge.

Argued March 6, 2002--Decided May 3, 2002

 Before Posner, Evans, and Williams, Circuit

Judges.

 Posner, Circuit Judge. Attorney Joe

Alfred Izen, Jr., has appeared in the

United States Tax Court in many cases

since the early 1980s. A number of them,

including the recently decided Muhich v.

Commissioner, 238 F.3d 860 (7th Cir.

2001), involve the same script: the IRS

determines a deficiency arising from the

use of sham trusts established for the

taxpayer by a promoter; the taxpayer

petitions for redetermination of the

deficiency; Izen appears for the

taxpayer; the case drags on, with the

taxpayer sometimes resisting discovery;

the court usually finds the taxpayer’s

arguments frivolous and either threatens

or imposes sanctions. Oelze v.

Commissioner, 723 F.2d 1162 (5th Cir.

1983) (per curiam); Watson v.

Commissioner, 690 F.2d 429 (5th Cir.

1982) (per curiam); Muhich v.

Commissioner, 77 T.C.M (CCH) 2143 (1999),

aff’d, 238 F.3d 860 (7th Cir. 2001);

Ripley v. Commissioner, 53 T.C.M. (CCH)

262 (1987); Dixon v. Commissioner, 79

T.C.M. (CCH) 1803, 1810 (2000).

 The present case follows this pattern

except that instead of sanctioning the

taxpayer the court sanctioned Izen under

26 U.S.C. sec. 6673(a)(2) by ordering him
to pay the attorneys’ fees that the IRS

had incurred as a consequence of his

discovery abuses. Izen appeals, arguing

that section 6673(a)(2) is a denial of

equal protection; that the Tax Court’s

sanction was impermissible because really

the court disciplined him not for

discovery abuses as it said but for

representing "disfavored" litigants who

promote or utilize sham trusts to avoid

taxes, and for allowing his client to

invoke the Fifth Amendment in response to

the IRS’s discovery demands; and that the

Tax Court overstated the amount of

attorneys’ fees that the IRS had incurred

as a consequence of his discovery abuses.

 In April 1999, Shirley Johnson, an

Indiana resident whose severe diabetes

hinders her ability to travel, filed in

the Tax Court two pro se petitions

challenging a notice of deficiency. Then,

hiring Izen, a Texas lawyer, to represent

her, she--realistically, Izen--took

advantage of the Tax Court’s liberal rule

on venue, Tax Ct. R. 140, to designate

Houston as the place for trial. And then

the stonewalling began. At first Johnson

simply ignored discovery demands. In Sep

tember 1999 the Tax Court ordered her to

respond to those demands and threatened

her with sanctions if she did not. Her

response was to answer 27 of 34

interrogatories and 37 of 51 document

requests with the words "Fifth

Amendment." The IRS requested sanctions,

and though declining that relief the

court conducted a hearing and ruled that

the Fifth Amendment defense was baseless.

The court ordered Johnson to cooperate

fully in discovery, and scheduled trial

for May 3, 2000.

 In December 1999 the IRS issued a second

set of interrogatories and document

requests, but again had to resort to

filing a motion to compel. The Tax Court

granted the motion and ordered, under an

express threat of sanctions, that Johnson

comply fully by April 7, 2000. Johnson

did not. Instead she gave notice that she

would be physically unable to participate

in a May trial. The court continued the

trial to December 2000 but maintained the

May 3 date for hearing the IRS’s renewed

motion for sanctions.

 Izen did not appear on May 3 but instead

sent his associate and sister, Jane Afton

Izen. The IRS explained to the court what
interrogatories remained unanswered and

also noted Johnson’s failure to comply

with a demand for copies of checks from

1996 and 1997. Expressing skepticism that

Johnson had made "a good faith effort to

comply with the court’s orders," the

court again threatened sanctions unless

she answered the interrogatories by May

17 and the document requests by July 5.

The court also expressed annoyance that

Joe Izen had failed to appear. Jane Izen

promised to provide the delinquent

discovery by the court’s deadlines.

 May 17 came and went with no response

from Johnson. Instead, on May 22 the

court received a motion dated May 15

seeking postponement of the now-expired

deadline. As grounds Izen offered his

busy schedule and Johnson’s poor health.

The court responded that his workload did

not excuse his disobeying the court’s

orders and this time it promised

sanctions if the interrogatories were not

answered by June 1. On that day the IRS

received partial responses. Later, after

missing the July 5 deadline to produce

checks from 1996 and 1997, Izen tendered

checks from the wrong bank and for the

wrong years. These were the same checks

Izen had produced twice before; the IRS

had repeatedly told him the checks were

noncomplying.

 On August 21, 2000, the court’s patience

ran out. After listening to Izen’s

explanations that he had "inadvertently"

failed to answer one of the

interrogatories and that Johnson’s poor

health hampered compliance with discovery

orders, the court ruled that Izen had

unreasonably and vexatiously multiplied

the proceedings within the meaning of 26

U.S.C. sec. 6673(a)(2) and in a

subsequent order it sanctioned him in the

amount of $9,394 to cover the attorneys’

fees incurred by the IRS in trying to

obtain compliance with its second set of

discovery requests. The court also

dismissed Johnson’s case for failure to

prosecute, a ruling she has not appealed.

 Izen contends that section 6673(a)(2)

denies equal protection of the laws

(actionable under the due process clause

of the Fifth Amendment by virtue of the

Supreme Court’s decision in Bolling v.

Sharpe, 347 U.S. 497 (1954)), because it

exempts government attorneys, and only

government attorneys, from personal
liability for unreasonably and

vexatiously multiplying Tax Court

proceedings. Izen waived the argument by

first including it in a motion under Tax

Court Rule 162, the analog to Fed. R.

Civ. P. 60(b). Drobny v. Commissioner,

113 F.3d 670, 676-77 (7th Cir. 1996);

Heim v. Commissioner, 872 F.2d 245, 246-

47 (8th Cir. 1989); see Provident Savings

Bank v. Popovich, 71 F.3d 696, 698 (7th

Cir 1995); Seatrax, Inc. v. Sonbeck

Int’l, Inc., 200 F.3d 358, 364-65 (5th

Cir. 2000).

 Anyway the argument is frivolous.

Section 6673(a)(2) states:

Counsel’s liability for excessive costs.-

-Whenever it appears to the Tax Court

that any attorney or other person

admitted to practice before the Tax Court

has multiplied the proceedings

unreasonably and vexatiously, the Tax

Court may require--

(A) that such attorney or other person

pay personally the excess costs,

expenses, and attorneys’ fees reasonably

incurred because of such conduct, or

(B) if such attorney is appearing on

behalf of the Commissioner of Internal

Revenue, that the United States pay such

excess costs, expenses, and attorneys’

fees in the same manner as such an award

by a district court.

This language authorizes the Tax Court to

sanction government attorneys personally

or to require the United States to pay

for their misconduct. Izen’s contrary

argument rests on a misreading. The equal

protection claim would be frivolous in

any event, as it is easy to imagine a

rational basis for treating public

lawyers in this respect different from

private ones. See Schwarz v. Kogan, 132

F.3d 1387, 1393-94 (11th Cir. 1998);

Weisbrod v. Sullivan, 875 F.2d 526, 529

n. 4 (5th Cir. 1989); State v. See, 387

N.W.2d 583, 586-87 (Iowa 1986).

 The next issue is Izen’s bad faith. We

hold (it is a question of first

impression at the appellate level) that a

finding of "bad faith" is indeed required

before an attorney may be sanctioned

under section 6673(a)(2). The language of

that statute is materially identical to

that of 28 U.S.C. sec. 1927, which has

been held to require a finding of bad
faith, IDS Life Ins. Co. v. Royal

Alliance Associates Inc., 266 F.3d 645,

654 (7th Cir. 2001); Fox Valley

Construction Workers Fringe Benefit Funds

v. Pride of the Fox Masonry & Expert

Restorations, 140 F.3d 661, 666 (7th Cir.

1998); In re Prudential Ins. Co. America

Sales Practice Litigation Actions, 278

F.3d 175, 188 (3d Cir. 2002), and the two

statutes serve the same purpose, just in

different but similar forums, and should

therefore be interpreted similarly. See

Harper v. Commissioner, 99 T.C. 533, 545

(1992).

 Bad faith under section 1927 of the

Judicial Code (and hence, we hold, under

section 6673(a)(2) of the Internal

Revenue Code) is not a subjective

concept, as the words "who so multiplies

the proceedings in any case unreasonably

and vexatiously" (emphasis added) might

be thought to imply; "reckless" or

"extremely negligent" conduct will

satisfy it. IDS Life Ins. Co. v. Royal

Alliance Associates Inc., supra, 266 F.3d

at 654; Kotsilieris v. Chalmers, 966 F.2d

1181, 1184-85 (7th Cir. 1992); In re TCI

Ltd., 769 F.2d 441, 445-46 (7th Cir.

1985); McLane, Graf, Raulerson &

Middleton, P.A. v. Rechberger, 280 F.3d

26, 44-45 (1st Cir. 2002); Proctor &

Gamble Co. v. Amway Corp., 280 F.3d 519,

525-26 (5th Cir. 2002); B.K.B. v. Maui

Police Dept., 276 F.3d 1091, 1108 (9th

Cir. 2002). And appellate review of the

decision to impose sanctions is for abuse

of discretion, Ragan v. Commissioner, 135

F.3d 329, 337 (5th Cir. 1998); Fox v.

Commissioner, 969 F.2d 951, 953 (10th

Cir. 1992), as is normally the case with

respect to decisions imposing sanctions,

e.g., IDS Life Ins. Co. v. Royal Alliance

Associates, Inc., supra, 266 F.3d at 654,

and is therefore consistent with the

general principle that the standards for

appellate review of Tax Court decisions

are identical to those for appellate

review of district court decisions. E.g.,

Freytag v. Commissioner, 501 U.S. 868,

891 (1991); Estate of Kunze v.

Commissioner, 233 F.3d 948, 950 (7th Cir.

2000); 26 U.S.C. sec. 7482(a)(1).

 Izen’s complaint that the Tax Court

based its finding of bad faith on his

conduct in other cases is off the mark in

two respects. The court placed primary

reliance on his conduct in the present

case; our recital of the facts showing
that Izen recklessly, and in all

likelihood intentionally, obstructed

discovery was drawn from the Tax Court’s

opinion. The court further noted that

Johnson’s trial memorandum, due on

November 17, 2000, was postmarked

November 27 yet certified by Izen as

having been served on November 22, and

that Izen had deposed Johnson without

adequate notice to the IRS yet persisted

in offering her deposition as evidence

despite the court’s denying him

permission to do so. Izen’s repeated

flouting of discovery orders even after

being threatened with sanctions and

promising to comply established his bad

faith all by itself. See Castillo v. St.

Paul Fire & Marine Ins. Co., 938 F.2d

776, 778-79 (7th Cir. 1991); Godlove v.

Bamberger, Foreman, Oswald, & Hahn, 903

F.2d 1145, 1146-48 (7th Cir. 1990);

Malautea v. Suzuki Motor Co., 987 F.2d

1536, 1545-46 (11th Cir. 1993). 

 The Tax Court was not required to ignore

Izen’s bad conduct in other cases; indeed

it would have been remiss not to consider

it. S Industries, Inc. v. Centra 2000,

Inc., 249 F.3d 625, 628-29 (7th Cir.

2001); In re Joint Eastern & Southern

Districts Asbestos Litigation, 22 F.3d

755, 759 n. 8 (7th Cir. 1994); Fink v.

Gomez, 239 F.3d 989, 992 (9th Cir. 2001);

Doering v. Union County Bd. of Chosen

Freeholders, 857 F.2d 191, 197 n. 6 (3d

Cir. 1988). (Such consideration might, of

course, redound to a lawyer’s benefit--if

his prior record were good, rather than,

as in Izen’s case, very, very bad.) In

prior litigation, Izen’s clients were

sometimes sanctioned because he employed

tactics like those in this case; and

dogged good-faith persistence in bad

conduct becomes sanctionable once an

attorney learns or should have learned

that it is sanctionable. Christiansburg

Garment Co. v. EEOC, 434 U.S. 412, 422

(1978); In re TCI Ltd., supra, 769 F.2d

at 445.

 Izen argues that the court penalized him

for Johnson’s frivolous assertion of her

right against self-incrimination. It did

not, as a matter of fact; but in any

event "if a competent attorney would find

no basis for a legal argument, then it

does not interfere with zealous advocacy

to penalize the repetitious assertion of

that argument." Id. at 447. Johnson had

the burden of proving that the IRS should
have allowed deductions for certain

business expenses. Competent counsel

would have recognized that burden as

incompatible with asserting a Fifth

Amendment privilege covering the entirety

of Johnson’s business affairs, and so

would have declined to make such a claim.

 As for Izen’s challenge to the amount of

the sanction, it is waived because he

delayed presenting it to the tax court

until his Rule 162 motion. 

 If anything, the Tax Court treated Izen

too gently. But his travails are not

over. As his appeal is frivolous, we are

issuing an order to show cause why he

should not be sanctioned for his antics

in this court.

Affirmed.