Lindsey Springer's Supreme Court Petition - Part 3

[Bob Hurt]

FYI

-------- Original Message --------

Subject:	Springer's Supreme Court Petition - Part 3
Date:	Fri, 18 May 2012 17:51:50 -0500
From:	Lindsey Springer <gnut...@mindspring.com>
To:	Lindsey Springer <gnut...@mindspring.com>

IV.  26 CFR SEC. 1.6091-2(2005) IS AMBIGUOUS, CAPRICIOUS, AND CONTRARY TO 26 U.S.C. SEC. 6091(b)(1)(A)(i) or       6091(b)(4).

Petitioner was given no notice his duty to file and pay was required in Tulsa, Oklahoma.  The Panel does not say.  App. A-7.  If this Court finds Sec. 1.6091-2(2005) controls the duty to "file", Petitioner requests this Court hold the Panel's application of Sec. 1.6091-2(a)(2005) ambiguous, capricious, arbitrary, and contrary to the direct words of 26 U.S.C. Sec. 6091(b)(1)(A)(i) and 6091(b)(4).  1.6091-2(2005) reads:

     "income tax returns...shall be filed with the person assigned the responsibility to receive returns at the local [IRS] office       that serves the legal residence...of the person required to make the return." App. U-3

The Panel never holds where this "local office" is located by law.  App. A-7.  The Grand Jury alleged the place to file by law was in Austin, Texas, or Tulsa, Oklahoma.  App. JJ-13.  Tulsa, Oklahoma is not designated as a "local [IRS] ofice" to receive tax returns or payment of taxes.  There was no notice to the public of any "person assigned the responsibility to receive returns" or payment anywhere in the State of Oklahoma.  Neither was "Austin, Texas" such a place designated and directed by the SOTT.  No public accessble Tulsa office exists.

Prior to September 16, 2004, proposed changes to Treas. Reg. Sec. 1.6091-2, the version applicable to years 2000 through 2004, directed tax return forms be filed with "district director for the [IRD] in which is located the legal residence...of the person required to make the return."  App. U-13.  The 2005 changes were substantial under the Panel's application.  26 CFR Sec. 301.7701-10(2000-2012) defines "District Director" to mean within each IRD.  App. U-15.  See Also Sec. 601.101. App. U-16.

26 CFR Sec. 301.7514(a)(2)(ii) identifies to the public the SOTT's District Director delegation and seal for the State of Oklahoma was at Oklahoma City, Oklahoma.  App. U-15.  Tulsa, Oklahoma is never mentioned.  

The Prosecution explained on appeal (App. RR-4):

     "Since 2004, the Treasury Department regulations have required individual taxpayers to file at their local office or at an      IRS Service Center specified in the applicable tax return instructions."

No mention of any place in "Oklahoma" in any non-accompanying instructions.  The Prosecution entered no evidence of who or where the local office for Petitioner's residence is located and found with a "responsible person."  Section 6091(b)(4) explains "Hand Delivery":

     "to the Secretary...in the internal revenue district referrred to in paragraph [(b)](1)(A)(i)...under regulations prescribed       by the Secretary."  App. U-3

26 CFR Sec. 1.6091-2(2005) is manifestly contrary to 26 U.S.C. Sec. 6091(b)(1)(A)(i) and 6091(b)(4).  "A regulation may have particular force if it is a substantially contemporaneous construction of teh statute..."  National Muffler Dealer's Assn. Inc. v. U.S., 440 U.S. 472, 477 (1979).  "The question to be asked did Congress address the question at issue by the regulation."  Chevron v. National Resource Defense Counse, Inc., 467 U.S. 837, 842-43(1948).  "[w]e turn to an agency regulation...if the statute is silent or ambiguous."  Id.  This Court said it would only intervene when the agency rule is "arbitrary or capricious in substance or manifestly contrary to the statute."  Household Credit Services, Inc. v. Pfennig, 541 U.S. 232, 242 (2004).

"Filling gaps in the [IRC]...requires the Treasury...to make interpretive choces for statutory implementation..." Mayo Found. For Med. Edu. & Research v. U.S., 131 S.Ct. 704, 713 (2010).  "Proplery promulgated, substantive agency regulations have the force and effect of law."  Chrysler v. Brown, 441 U.S. 281, 295 (1979).

The Panel holds Sec. 6091(a)'s "any return" covers "tax returns" required by Sec. 6091(b).  App. A-7   No finding of what law requires Petitioner to file tax returns or pay taxes in the State of Oklahoma.  Section 1.6091-2 specifically identifies Sec. 6091(b).  App. U-13.

This Court stated the requirement to file a "tax return" is a "regulatory requirement."  Hubbell v. U.S., 530 U.S. 27, 35 (2000).  The Prosecution emphatically denied any Treasury Regulations were involved in the duty to file a Tax Return or pay taxes.  App. QQ-2.  Yet they provide a second bill of particulars listing "regulations thereunder".  While the Prosecution does not list 26 CFR Sec. 1.6091-2(2005) in its second bill of particulars, App. QQ-2, they turn to it in their appeal brief, App. RR-4, and the Panel saves the entire conviction on the 2005 version.  App. A-7.  Taxes are "enforced exactions, not voluntary contributions."  Thompsos/Center, 504 U.S. at 512 (n.4).  Yet, the purpose of the criminal division is to promote "voluntary compliance."  LaSalle, 298 U.S. at 309.  "Given [U.S. v. Sullivan], it cannot fairly be said that taxpayers are 'volunteers' when they file their returns."  Garner v. U.S., 424 U.S. 648, 652 (1976).  But compare U.S. v. Tedder, 787 F.2d 540, 542-43 (10th Cir. 1986)("Treasury regulations establish voluntary compliance as the general method of income tax collection.")(citing 26 U.S.C. Sec. 6301).

The "jury must find that the defendant was aware of the specific provision of the tax code that he was charged with violating."  Bryan v. U.S. 184, 194 (1998).  The Panel nor jury could have found Petitioner aware he was required to file a tax return pursuant to Sec. 6091(a),  or pursuant to Treas. Reg. 1.6091-2(2005), for calender years 2000 through 2007, because it alleged Petitioner was required to file in Tulsa, Oklahoma, which no statute or regulation has ever placed the duty for a person in Petitioner's location to file anywhere in the Counties that the Court instructed to the Jury. App. N-6.  Although the Jury could not find Petitioner aware of Sec. 6091(b)(1)(A)(i) and (b)(4), if properly instructed, no person could find Petitioner intentionally violated Sec. 6091(b), nor failing to pay under Sec. 6151, without the existence if IRDs.

Any penalty under these circumstances is cruel and unusual. 

V.  TENTH CIRCUIT'S APPLICATION OF SEC. 1.6091-2(2005) TO TAX YEARS 2000 THROUGH 2004 VIOLATES ARTICLE I, SEC.      9, CL. 3'S EX POST FACTO PROHIBITION AND 26 U.S.C. SEC. 7805(b). 

Count One , Two, Three and Five, involve the duty to "file" tax return forms for calender year 2000 through 2003.  Count Six is for years 2004 and Count Four is for 2005. App. JJ.  Count One's paragraph 6, that income tax return forms have not been "filed" for many years was incorporated into all Counts of the indictment.  App. JJ-8.

The Panel held since all IRDs no longer exist, App. A-7, 26 U.S.C. Sec. 6091(a), instead of Congress's Sec. 6091(b), controlled the duty to "file" a tax return.  App. A-7  In making this violation of due process under the Fifth Amendment, the Panel turns to Treas. Reg. Sec. 1.6091-2(2005).   App. A-7.  They omit reference to "(2005)" but the terms they quote unmistakably derive from the 2005 version. App. U-13.  Compare 2000 through 2004 version.  App. U-12 & 13

Though the Panel does not say where Petitioner's duty to "file" is to be made, they reply upon "local [IRS] ofice" and "person assigned responsibility."  App. A-7.  This version of Sec. 1.6091-2 did not exist in 1999 through most of 2004 and was not the official version until April, 2005.  Again, no notice given of what those terms mean.

The ex post facto clause flatly prohibits retroactive application of penal legislation.  Landgraf v. USI Film, Products, 511 U.S. 244, 266 (1994).  "Fair warning" is the test.  Calder v. Bull, 3 Dall 386 (1798).  Though the Panel does not identify any "local [IRS] office" so designated to receive returns or payment, 26 CFR Sec. 301.7514-1(a)(2)(ii) lists "Oklahoma City" as the office of District Director.  App. U-15.  Brewer, 486 F.2d at 509.  The Panel agreed 4 U.S.C. Sec. 72 places a limit on Congressional power outside Washington D.C.  App. A-6  See Hughes v. U.S., 953 F.2d 531, 542 (9th Cir. 1992).

26 U.S.C. Sec. 7805(b) prohibits ex post facto application, i.e. "retroactive" application, of properly promulgated Treasury Regulations.  Such regulations must not be applied ex post facto and is "an abuse of the Secretary's discretion."  Auto Club of Michigan v. CIR, 353 U.S. 180, 184 (1957).  See also Mayo Found. Med. Edu. & Research v. U.S., 131 S.Ct. 704, 713 (2010).  The Secretary "must follow steps Congress has specified."  Reece v. Scoggins, 506 F.2d 967, 971 (5th Cir. 1975)

The Tax Laws protect "both the government and the taxpayer."  U.S. v Brafman, 384 F.2d 863, 868 (5th Cir. 1967).  "Tax officials and taxpayers alike are under the law not above it."  Id.   "Maticulous compliance" is the test to avoid penalty.  Allnutt, 523 F.3d at 413-414.

The Panel admits IRDs and District Director offices no longer exist,  App. A-7, but the Tenth Circuit, as recently as July 5, 2011, held the Court lacked jurisdiction based upon a treasury claim not being filed in the "internal revenue district."  Green v. U.S., 438 F. Appx. 863, 867 (10th Cir. 2011).  For 12 years the Tenth Circuit continued making decisions as if the IRDs and District Director offices existed.  See Peoples Source Int'l v. U.S., 198 F. Appx. 776, 779 (10th Cir. 2006); Goodman v. U.S., 185 F. Appx. 725, 728-29 (10th Cir. 2006); U.S v. Dawes, 161 F. Appx. 743, 745 (10th Cir. 2005); March v. IRS, 335 F.3d 1186, 1189 (10th Cir. 2003).  26 CFR Sec. 1.6091-2(2005), applied to years 2000, 2001, 2002, 2003, and 2004, violates the Constitution and Sec. 7805.

VI.   RULE OF LENITY SHOULD OTHERWISE APPLY TO ALL SIX COUNTS

The rule of lenity "leads us to a more lenient interpretation of criminal statutes when after consulting traditional cannons of statutory construction, we are left with an ambiguous statute."  Kasen v. Saint Gobain, 179 L.Ed. 2d 379, 391 (2011).  Lenity is appropriate where tax statutes "carry no additional requirement of willfulness."  Thompson/Center, 504 U.S. at 517.  Lenity should apply to a legal impossibility.

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