What technique do you suggest to avoid making claims on a return that are frivolous?

There are two types of ineffective tax arguments:

  1. Frivolous arguments. Can contain both facts and law. The reason an argument is deemed frivolous is always because it is beside the point to a determination of tax liability.
  2. Meritless arguments. Lacks sufficient facts to support your legal argument.

Most ineffective legal arguments are entirely legal and contain no element of fact (or insufficient facts) to support the legal argument. Thus they are “meritless”.

Merit Law and Legal Definition

Merit is a term subject to various meanings, but in the legal context, merit refers to a claim which has a valid basis, setting forth sufficient facts from which the court could find a valid claim of deprivation of a legal right. Meritorious claims usually cite legal authorities, such as statutory laws or case law, to support their arguments. However, merit is a subjective term that takes various factors into account on a case-by-case basis. For example, a pro se defendant seeking post-conviction relief is often be expected to construct legal arguments, cite legal authority, or draft her petition as artfully as a lawyer would. If the evidence defeats the claim, the claim is “meritless.”

If the evidence defeats the claim, the claim is “meritless.” That is the bottom line right there—it has to do with what the evidence says.

A frivolous position is beside the point even if you provide facts to support the position. That is why affidavits claiming to be a free-born sovereign of the republic of (state) do not work. The affidavit is certainly evidence, but the legal argument is impertinent because: there is no basis in law for the argument that you are immune from tax on that basis. And that is the crux of nearly all of these frivolous arguments: that “I am immune from tax because…” or “I am immune from taxation on this item because…..” Since this argument is typically made by a statutory “U.S. person”, there is no legal basis for such argument without a specific exclusion/exemption provided in the Code

adj. referring to a legal move in a lawsuit clearly intended merely to harass, delay, or embarrass the opposition. Frivolous acts can include filing the lawsuit itself, a baseless motion for a legal ruling, an answer of a defendant to a complaint which does not deny, contest, prove, or controvert anything, or an appeal which contains not a single arguable basis (by any stretch of the imagination) for the appeal. A frivolous lawsuit, motion or appeal can result in a successful claim by the other party for payment by the frivolous suer of their attorneys fees for defending the case. Judges are reluctant to find an action frivolous, based on the desire not to discourage people from using the courts to resolve disputes.

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

A frivolous argument has three elements:

  • lacks merit;
  • doesn’t controvert the material points; and
  • is brought in bad faith.

Frivolous tax arguments are addressed in IRS Notice 2010-33. The best way to to ensure that you are never labeled as “frivolous” is to:

  1. Avoid arguments listed as frivolous in IRS Notice 2010-33.
  2. Make statements in pairs, meaning include the specific law or statute or court case, and then make a factual statement that applies that statement to your specific circumstances.

For further information, see:

Anatomy of a Frivolous Argument