Discover more from Tax Court Help
Springer's Supreme Court Petition, Part III, Internal Revenue Districts
This is part III of Lindsey Springer's Supreme Court petition. I've linked the cases, statutes, and regulations where I've been able to find them, edited slightly and corrected typos. I was not able to find the Federal Appendix cases from the 10th Circuit online. Mr. Springer is a political prisoner. I urge you to support him with a donation. Contact information is at the end of this post.
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).
26 CFR 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 rules on 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] office" 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 publicly accessible 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 returns 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, "the district direct of internal revenue for an internal revenue district." 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."
There is no mention of any place in "Oklahoma" in any non-accompanying instructions. The Prosecution entered no evidence of where the local office for Petitioner's residence is located or who a "responsible person" might be. Section 6091(b)(4) explains "Hand Delivery":
"to the Secretary...in the internal revenue district referred 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 the statute..." National Muffler Dealer's Assn. Inc. v. U.S., 440 U.S. 472, 477 (1979). "The question to be asked is, 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 choices for statutory implementation..." Mayo Foundoundation For Med. Edu. & Research v. U.S., 131 S.Ct. 704, 713 (2010). "Properly 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 The Panel made no finding of what law requires Petitioner to file tax returns or pay taxes in the State of Oklahoma. 26 CFR Section 1.6091-2 specifically identifies Sec. 6091(b). App. U-13. In U.S. v. Brewer, 486 F.2d 507 at 509, the 10th Circuit confirmed that 26 U.S.C. § 6091(b)(1)(A)(i) and (ii) determine where tax returns are to be filed.
This Court stated the requirement to file a "tax return" is a "regulatory requirement." Hubbell v. U.S., 530 U.S. 27, 35 (2000). But the Prosecution emphatically denied that any Treasury Regulations were involved in the duty to file a Tax Return or pay taxes, (App. QQ-2) in direct contradiction of the second bill of particulars listing the "regulations thereunder" as part of the legal requirement. And, 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." Thompson/Center Arms Co., 504 U.S. 505 at 512 (n.4). Yet, the purpose of the criminal division is to promote "voluntary compliance." U.S. v.LaSalle, 437 U.S. 298 at n. 12 (1978). "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) where the Court stated that "…Treasury regulations establish voluntary compliance as the general method of income tax collection,…"(citing 26 U.S.C. Sec. 6301) even where the Secretary had the power to enforce involuntary collection.
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., 524 U.S. 184, 194 (1998). Because the Panel alleged Petitioner was required to file in Tulsa, Oklahoma, neither the Panel nor the jury could have found Petitioner was aware of a filing requirement pursuant to Sec. 6091(a), or pursuant to Treas. Reg. 1.6091-2(2005), for calendar years 2000 through 2007. 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 a properly instructed Jury could not find Petitioner aware of Sec. 6091(b)(1)(A)(i) and (b)(4), without the existence of IRDs, no person could find Petitioner intentionally violated Sec. 6091(b), or failed to pay under Sec. 6151.
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 calendar 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 that because IRDs no longer exist, (App. A-7) 26 U.S.C. Sec. 6091(a) controls the duty to “file” a tax return, instead of Congress's Sec. 6091(b).. App. A-7 The Panel violates due process under the Fifth Amendment when it bases its decision on Treas. Reg. Sec. 1.6091-2(2005). App. A-7. The Panel omits reference to "(2005)" but the terms they quote unmistakably derive from the 2005 version of the regulation. App. U-13. Compare 2000 through 2004 version. App. U-12 & 13
The Panel does not say specifically where Petitioner must “file”, but instead relies on the completely ambiguous terms "local [IRS] office" and "person assigned responsibility” without identifying either App. A-7. The 2005 version of Sec. 1.6091-2 did not exist from 1999 through most of 2004 and was not the official version until April, 2005. Again, no notice was given to the public 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.
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. "Meticulous 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 because a treasury claim was not 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.
Thank you so much for the support you have given us so far. I pray that you are rewarded for your generosity, both in this life and the next.
Mailing address for donations or other inquiries (cash, or blank first name on checks): _________ Springer 5147 S. Harvard, #116, Tulsa, OK 74135
Letters to Lindsey directly (no donations or packages): Lindsey Springer, 02580-063 FCI Big Spring 1900 Simler Ave Big Spring, TX 79720
Thanks, Lindsey & Family