01-2509 Johnson v. Commissioner of Internal Revenue,

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“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.

“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. … 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.

“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.

Cohen, J., Posner, J.