Supreme Court of the United States

Transcription

1 No. ================================================================ In The Supreme Court of the United States JERRY P. McNEIL, v. Petitioner, UNITED STATES TAX COURT and COMMISSIONER OF INTERNAL REVENUE, Respondents. On Petition For Writ Of Certiorari Before Judgment To The United States Court Of Appeals For The Tenth Circuit PETITION FOR WRIT OF CERTIORARI BEFORE JUDGMENT JERRY P. MCNEIL, pro se East 80th St. North Owasso, OK (918) ================================================================

2 i QUESTIONS PRESENTED The Constitution of the United States enumerates the powers granted to the Congress at Article I. In Section 8, Clauses 9 & 18 provide in relevant part: The Congress shall have power to... [Clause 9] Constitute Tribunals inferior to the Supreme Court;... [Clause 18] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.... [W]hen the law has confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, is conclusive upon all others. French v. Fyan, 93 U.S. 169, 171 (1876). In that respect they [the special tribunals] exercise a judicial function... Smelting, etc., Co. v. Kemp, 104 U.S. 636, 640 (1881). 1. Whether, when the Congress confided the power to determine the private non-disability life estate annuities of Federal employees upon their retirement, to the Civil Service Commission (now the Merit Systems Protection Board of the Office of Personnel Management) did then the Congress establish a special tribunal within the meaning of its vested powers?

3 ii LIST OF PARTIES Supreme Court Rule 29 The name of the Petitioner is: Jerry P. McNeil The Respondents are: The United States Tax Court; The Commissioner of Internal Revenue appearing in the Tax Court by Attorney G. Chad Barton.

4 APPENDIX iii TABLE OF CONTENTS Page United States Tax Court, Order and Order and Decision, June 14, App. 1

5 1 PETITION FOR WRIT OF CERTIORARI Jerry P. McNeil, a Citizen of one of the United States of America hereby Petitions this Court of last resort for Certiorari to the Tenth Circuit Court of Appeals prior to judgment in that Court under authority of Supreme Court Rule Eleven. OPINIONS BELOW This Petition seeks review of the Order and Order and Decision of the United States Tax Court, Docket No L, dated June 14, 2011, included in the Appendix at App. 1. This is under appeal in the Tenth Circuit Court of Appeals, Case No STATEMENT OF JURISDICTION This Court has jurisdiction under Title 28 U.S.C. 1254(1), under the All Writs Act, Title 28 U.S.C. 1651, and is timely under 28 U.S.C. 2101(e), and Rule 11. CONSTITUTIONAL AND STATUTORY PROVISIONS Please see Petitioner s Questions Presented.

6 2 STATEMENT OF THE CASE AND STANDING Petitioner McNeil holds a non-disability life estate annuity adjudged by the Civil Service Commission within its assigned authority. That private life estate Annuity is not assignable, either in law or equity, or subject to execution, levy, attachment, garnishment, or other legal process. See U.S. Statutes at Large, PUBLIC LAW SEPT. 6, 1966, Title 80 Stat. 583, 8346(a). The Tax Court apparently wanted jurisdiction to approve the alleged deficiencies because of the statutory bar to legal process. On June 14, 2011, the Tax Court issued an order approving IRS seizure by levy of Petitioner/Appellant McNeil s life estate annuity notwithstanding the statutory bar. See appendix, page 6. The Tax Court Order is under appeal in the Tenth Circuit and has not been decided there. The United States Court of Appeals for the Federal Circuit, as well as the District Court for the District of Columbia have previously also refused to accept Petitioner s characterization of the life estate annuity as United States property conveyed to a private party, as a vested legal right of which the Executive cannot deprive him. Marbury v. Madison, 5 U.S. 1 (Cranch) 137 (1803). The District Court for the District of Columbia had formal notice of the Secretary of the Treasury s contempt of subpoena as reported to this Court in Docket #11-112, App. 37 et seq.

7 3 Petitioner has been harmed in his property interests by the actions of Respondent Commissioner of Revenue and by the Judges of the Tax Courts under color of law and in the clear absence of all jurisdictions. The Petition in the Tenth Circuit Court of Appeals seeks to vacate void judgments taken in the United States Tax Court upholding deficiencies alleged by Respondent Commissioner of Internal Revenue and approving seizures of the assets in the life estate annuity. Public Law 89-54, cited to supra bars all subsequent jurisdictions to relitigate the life estate annuity in any forum. Moreover, if the Merit Systems Protection Board does indeed constitute a special tribunal, then: The only questions which can arise between an individual claiming a right under the acts done and the public, or by any person denying its validity, are power in the officer and fraud in the party. All other questions are settled by the decision made or the act done by the tribunal or officer. See U.S. v. California & O. Land Co., 148 U.S. 31, 44 (1893), and cases there cited. If the Merit Systems Protection Board does indeed constitute a special tribunal, then:... [T]he finding of the department upon such facts cannot be collaterally impeached.... Their judgment in such cases is like that of other special tribunals upon matters within their exclusive jurisdiction, unassailable, except by a direct proceeding for its

8 4 correction or annulment. Noble v. Union River Logging R. Co., 147 U.S. 165 (1893). REASONS FOR GRANTING THE WRIT Petitioner McNeil relies on the prior judgments of this Court for his protection. Because of the Secretary s contempt of subpoena the QUESTION PRE- SENTED here is an original question which has not been decided by any Court of Appellate Jurisdiction. This Court of last resort has both power and a duty to settle all questions herein stated or implied. The QUESTION PRESENTED is justiciable; the harms done to Petitioner in his property interests are palpably clear, and a full and complete remedy is within the power of this Honorable Court. If the doctrine of stare decisis has any meaning at all, it requires that people in their everyday affairs be able to rely on our decisions and not be needlessly penalized for such reliance. Flood v. Kuhn, 407 U.S. 258, 283 (1972); Wallace v. M Connell, 13 Pet. 136, 150 (1839); United States v. Mason, 412 U.S. 391, (1973). The WRIT OF CERTIORARI should issue to the Tenth Circuit Court of Appeals below.

9 5 PRAYER Petitioner McNeil Prays this Honorable Court for relief in the form of vacating of the clearly void judgments taken in the United States Tax Court for want of statutory authority in a Court of Record [80 Stat. 583, supra] or to impose any tax described in Subtitle A of the Internal Revenue Code; for abatement of all present or future demands by the Respondent Commissioner of Internal Revenue because of the nature of judgments taken in the Merit Systems Protection Board; and for taxation of costs to Respondent Commissioner for legal costs to defend against Respondent s color of law deficiency assessments, whether here, or in any lower Court of record. Respectfully submitted, JERRY P. MCNEIL, pro se East 80th St. North Owasso, OK (918)

10 App. 1 UNITED STATES TAX COURT WASHINGTON, DC RMM JERRY P. MCNEIL, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent ) ) ) ) ) ) ) ) Docket No L. ORDER AND ORDER AND DECISION (Filed Jun. 14, 2011) The instant case is a collection review proceeding commenced pursuant to section 6330(d)(1) and Rules Pending before the Court are (1) respondent s Motion For Summary Judgment, filed March 21, 2011, and supplemented June 8, 2011, and (2) respondent s Motion To Permit Levy, filed March 21, Petitioner filed an Objection to each motion on 1 All section references are to the Internal Revenue Code of 1986, as amended, and all Rule references are to the Tax Court Rules of Practice and Procedure. 2 Originally, respondent filed a Motion For Judgment On The Pleadings on March 21, However, by Order dated May 26, 2011, that motion was recharacterized by the Court as a motion for summary judgment. See Rule 120(b).

11 App. 2 April 11, As discussed below, we shall grant respondent s Motion For Summary Judgment, as supplemented, and deny respondent s Motion To Permit Levy. Background At the time that the petition was filed, petitioner resided in the State of Oklahoma. Petitioner is a former Federal employee, having retired on or about February 3, Petitioner received nondisability civil service pension distributions from the United States Office of Personnel Management (OPM) in 2004, 2005, and 2006 of $56,892, $58,428, and $60,816, respectively, for which OPM issued Forms CSA 1099-R ( Statement Of Annuity Paid ). Petitioner did not file a valid income tax return for 2004, 2005, or Rather, for each of those years petitioner submitted to one or more of respondent s regional service centers a Form 1040NR ( U.S. Nonresident Alien Income Tax Return ) and/or a Form 1040NR-EZ ( U.S. Income Tax Return for Certain Nonresident Aliens With No Dependents ). 3 On these forms, petitioner acknowledged receiving 3 On each of these forms, petitioner listed an Oklahoma address (the same as listed on the petition in the instant case) and claimed to be a citizen or national of the State of Texas. Also, petitioner admits to holding a passport issued by the United States.

12 App. 3 pension distributions from OPM but claimed that such distributions were not taxable, either because my receipts from within the United States are a vested right, protected by the Contract Clause and the fifth amendment to the Constitution for the united [sic] States of America or because the annuity distributions are property not in the political or judicial control of the US. For each of the years 2004, 2005, and 2006, respondent sent petitioner a written letter advising him that the submitted Form 1040NR or Form 1040NR-EZ was frivolous, warning him of a potential penalty under section 6702 for each submission, and affording him the opportunity of rectifying the submission by sending a corrected form. After petitioner failed to send a corrected form in response to each notification, respondent assessed the applicable penalty. Also for each of the years 2004, 2005, and 2006, respondent sent petitioner a notice of deficiency. See sec In each instance, respondent determined both a deficiency in income tax (based principally on petitioner s failure to report his pension income) and various additions to tax and/or penalties. Petitioner failed to file a petition for redetermination with this Court for 2004 and See sec. 6213(a); see also sec. 6213(c). For 2005, petitioner filed a petition at dkt. No , but it was dismissed for lack of jurisdiction after petitioner failed to obey an order directing him to file a proper amended petition and

13 App. 4 pay the filing fee. Accordingly, for each year, respondent assessed the deficiency in tax, together with applicable addition(s) to tax and penalty(ies), as well as statutory interest. Concurrent with each assessment, respondent sent petitioner a notice and demand for payment. See sec. 6303(a). In each instance petitioner failed to pay. Thereafter, respondent sent petitioner a final notice of intent to levy, and petitioner requested an administrative hearing with respondent s Appeals Office. See sec Ultimately, on July 23, 2010, respondent s Appeals Office issued (1) a Notice Of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 regarding petitioner s outstanding liabilities for Income/1040 for 2004, 2005, and 2006, and (2) a Notice Of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 regarding petitioner s outstanding liabilities for Civil Penalty/ IRC 6702(a) for 2004, 2005, and Petitioner then appealed to this Court. See sec. 6330(d)(1); Rules Discussion (1) Motion For Summary Judgment The facts as outlined above speak for themselves and presage our ruling on respondent s summary judgment motion.

14 App. 5 Income from annuities and pensions falls within the definition of gross income and is taxable. 4 Sec. 61(a)(9), (11). Petitioner s protestations to the contrary are frivolous and need not be discussed at length. See Crain v. Commissioner, 737 F.2d 1417 (5th Cir. 1984). Suffice it to say that petitioner s submissions appear to implicate the so-called 861 argument, which is often advanced by tax protestors, see Stephens v. Commissioner, T.C. Memo , that items of income not listed in the regulations under section 861 do not constitute gross income within the meaning of section 61 and are therefore not subject to tax, see Corcoran v. Commissioner, T.C. Memo and cases cited therein, affd. 54 Fed. Appx. 254 (9th Cir. 2002). We have previously characterized the 861 argument as frivolous. Takaba v. Commissioner, 119 T.C. 285, (2002). In any event, petitioner s submissions are frivolous, and his arguments (whether based on section 861 or independent of that section) are nothing other than pseudo-legal gobbledegook of no moment. 4 Petitioner may have a basis in his civil service pension such that the gross distribution is not fully taxable. However, for the years in issue (i.e., 2004, 2005, and 2006), basis could have been raised as an issue in an action for redetermination if petitioner had appealed to this Court (2004 and 2006) or had complied with our order regarding an amended petition and filing fee (2005). Regardless, any potential issue related to basis is not before us in the instant case. E.g., sec. 6330(c)(2)(B); Giamelli v. Commissioner, 129 T.C. 107, (2007).

15 App. 6 In short, respondent s assessments are in accord with the law, and petitioner has failed to raise any justiciable issue. Respondent s Motion For Summary Judgment, as supplemented, shall be granted. (2) Motion To Permit Levy We shall deny respondent s Motion To Permit Levy because respondent has not convincingly demonstrated that petitioner s assets may be dissipated or concealed or may not otherwise be susceptible to levy if the general suspension rule of section 6330(e)(1) is honored. Conclusion In order to give effect to the foregoing, it is hereby ORDERED that respondent s Motion For Summary Judgment, filed March 21, 2011, and supplemented June 8, 2011, is granted. It is further ORDERED AND DECIDED that respondent may proceed with the proposed collection action (levy), as determined by respondent s Appeals Office in its Notice Of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 dated July 23, 2010, regarding petitioner s outstanding liabilities for Income/1040 (i.e., liabilities related to income taxes) for 2004, 2005, and 2006, and as determined by respondent s Appeals Office in its Notice Of Determination Concerning Collection Action(s) Under

16 App. 7 Section 6320 and/or 6330 dated July 23, 2010, regarding petitioner s outstanding liabilities for Civil Penalty/IRC 6702(a) (i.e., liabilities related to frivolous filing penalties) for 2004, 2005, and It is further ORDERED that respondent s Motion To Permit Levy, filed March 21, 2011, is denied. (Signed) Robert N. Armen Special Trial Judge