Petition for Writ of Certiorari — Bart H. Rippl, Petitioner v. United States

No.

In the

Supreme Court of the

United States

Bart H. Rippi,

Petitioner

MA

UNITED STATES OF AMERICA

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth

Circuit

Bart H. Rip p1

% 30628 Detroit Rd., #140

Westlake, Ohio 44145

440 835 6969

*party Appellant in

Propria Persona

(4

tv

1

QUESTIONS PRESENTED

Does the Fifth Amendment's "due process

of law" guarantee apply to the specific language set forth in the Internal Revenue Code

and other laws, and in substantive regulations?

111

TABLE OF CONTENTS

QUESTIONS PRESENTED .............................. i

PARTIES TO THE PROCEEDING .................ii

TABLE OF CONTENTS..................................iii

.

TABLE OF AUTHORITIES .............................. v

PETITION FOR WRIT OF CERTIORARI ......1

OPINIONS BELOW .........................................1

JURISDICTION................................................1

CONSTITUTIONAL PROVISIONS,

STATUTES AND REGULATIONS INVOLVED........................................................2

STATEMENT OF THE CASE ..........................5

REASONS RELIED ON FOR ALLOWANCE

OF THE WRIT ............................................... 7

ARGUMENTS ................................................... 9

STATUS OF PERTINENT REGULATION .16

. .

DUE PROCESS OF LAW...............................19

SUMMARY......................................................21

CONCLUSION................................................ 22

APPENDIX A: Order of the United States District

Court for the Northern District of Ohio.......App. 1

fk

V

RULES

Federal Rules of Evidence Rule 803:

Exceptions to the Rule Against Hearsay

..................................................App. 62

TABLE OF AUTHORITIES

CASES

Accord Rowan, 452 U.S. at 252, 101 S.Ct. at

2292..............................................................17

Armstrong World Industries, Inc. v. Commissioner, 974 F.2d 422, 430 (3rd Cir. 1992).... 16

Batterton v. Francis, 432 U.S. 416, 426, 97

S.Ct. 2399, 2406, 53 L.Ed.2d 448 (1977)

17

....

Chrysler v. Brown, 441 U.S. 281, at 301-302

(1979) ...........................................................16

Davis v. Comm'r, 115 T.C. 35, 42 (2000).........15

Dodd v United States, 545 U. S. 353, 357

(2005) ............................................................10

Flores-Figueroa v. United States, 556 U. S.

(2009) ......................................................19

Florsheim Bros. Drygoods Co. v. United States,

280 U.S. 453 (1930) .....................................14

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) .......19

vii

TABLE OF AUTHORITIES

CONTINUED

-

Rowan Cos. v. United States, 452 U.S. 247,

2537 101 S.Ct. 2288, 2292; 68 L.Ed.2d 814

(1981) .............................................................17

Schad v. Commissioner, 87 T.C. 609, 618 (1986)

...................................22

Weimerskirch v. C. I. R., 596 F.2d 358 (1979)...

..............................22

Welch v. Helvering, 290 U.S. 111, 115(1933)

..............................14,15

Wickwire v. Reinecke, 275 U.S. 101, 106 (1927)

...................................15

United States v. Besase, 623 F.2d 463, 465 (6th

Cir. 1980)......................................................22

United States v. Lexington Mill & E. Co., 232

US 399, pp. 409. (1914) ...............................10

United States v. Vogel Fertilizer Co., 455U.S.

16, 24, 1025.Ct. 821, 827, 70 L.Ed.2d 792

(1982) .............................................................17

ix

TABLE OF AUTHORITIES

CONTINUED

-

26 C.F.R. § 301.6203-1 ....................................2, 4

26 C.F.R. § 301.6303-1 ..................................2, 4

26 C.F.R. 301.7701-1(a) ................................... 6

CONSTITUTIONAL PROVISIONS

Fifth Amendment.................................................

i, 2, 7, 8, 109 119 12, 13, 19, 21, 22

Constitution for the United States of America,

.

Art. III ............................................................. 2

Sixteenth Amendment ..............................2, 3, 7

RULES

Federal Rule of Evidence Rule 803 ....................

................4,9,20,22

O T HER AUTHORITIES

John Jay, A Hint to the Legislature of the

State of New York (1778).............................20

T.D. 6364,24 FR 1196.....................................17

I.

Constitution for the United States of America,

Art. III 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS,

STATUTES, AND REGULATIONS INVOLVED

The constitutional provisions, statutes

and regulations involved in the case include

the Fifth Amendment & Sixteenth Amendment; 4 U.S.C. §§ 71 and 72; 5 U.S.C. §

551(13); 26 U.S.C. § 6001; 26 U.S.C. § 6020; 26

U.S.C. § 6065; 26 U.S.C. § 6203; 26 U.S.C. §

6303; and implementing regulations at 26

C.F.R. § 1.6001-1; 26 C.F.R. § 301.6020-1; 26

C.F.R. § 1.6065-1(a) 26 C.F.R. § 301.6203-1;. 26

C.F.R: § 301.6303-1; and 44 USC §3101.

The Fifth Amendment to the United

States Constitution states, in pertinent part:

No person shall.. .be deprived of life, liberty,

or property, without due process of law. .."

The Sixteenth Amendment states:

rV

Title 5, United States Code, section 551,

subsection (13), the definition of "agency action":

includes the whole or a part of an agency

rule, order, license, sanction, relief, or the

equivalent or denial thereof, or failure to

act;

Other identified provisions of law and implementing regulation are lengthy, and are therefore reproduced in the Appendix at App. 32-72:

26 U.S.C. § 6001

26 C.F.R. § 1.6001-1

26 U.S.C. § 6020

26 CFR 301.6020-1

26 U.S.C. § 6065

26 C.F.R. § 1.6065-1(a)

26 U.S.C. § 6203

26 C.F.R. § 301.6203-1

26 U.S.C. § 6303

26 C.F.R. § 301.6303-1

44 USC §§ 3101

Federal Rules of Evidence Rule 803.

6

in the INTERNAL REVENUE CODE, Public

Law 83591, 68A Stat. 911, 26 U.S.C; § 7701(a)

(14), and 26 C.F.R. 301.7701-1(a), with respect to tax imposed in Internal Revenue Code

Subtitle A;

that "Substitute [s] For Return

U.S.C. § 6020

under 26

-

are subject to the "Verifica-

-

tion of Returns" mandate in 26 U.S.C. § 6065

and required to be made under penalty of perjury.

that the "method of assessment" provision

of 26 U.S.C. § 6203 requires that "the assessment shall be made by recording the liability

of the taxpayer in the office of the Secretary."

that, pursuant to 26 U.S.C. § 6203, "Upon

request of the taxpayer, the Secretary shall

furnish the taxpayer a copy of the record of the

assessment."

that the "Notice and demand for tax" provision at- 26 U.S.C. § 6303 is mandatory.

Sixth Circuit Judges GUY, COOK, and

DONALD affirmed in an ORDER filed on May

23, 2018, specifically rejecting Petitioner's ar

IV

It is beyond reasonable dispute that "Federal tax law begins with the Internal Revenue

Code (IRC). .."

It is beyond reasonable dispute that the

Fifth Amendment to the United States Constitution secures the due process of law

includ-

-

ing the Tax Law of the United States to all

Citizens, and/or persons within the jurisdiction

of the United States.

The United States failed in its duty to cornply with the Congressionally-enacted language

of the Internal Revenue Code, the Administrative Procedure Act and failed its duty to uphold the Fifth Amendment's due process guarantee.

The case below was decided in a way that

both conflicts with relevant decisions of this

Court and in respect of an important question

of federal law that has not been, but should be,

settled by this Court.

1 Source: https://www.irs.gov/privacy-disclosure/tax-

.

code-regulations- and-official- guidance

10

is clear, and Petitioner is guaranteed the Due

Process thereof by the Fifth Amendment to the

United States Constitution.

The courts2

are not at liberty to construe any

statute so as to deny effect to any part

of its language. It is a cardinal rule. of

statutory construction that significance

and effect shall, if possible, be accorded

to every word. As early as in Bacon's

Abridgment, § 2, it was said that 'a

statute ought, upon the whole, to be so

construed that, if it can be prevented, no

clause, sentence, or word, shall be superfluous, void, or insignificant.' This

rule has been repeated innumerable

times." Justice Strong, United States v.

Lexington Mill & E. Co., 232 US 399,

pp. 409. (1914) [emphasis added];

". . .

And as recently as November 8, 2017, the

United States Supreme Court upheld the rule

of decision that laws must be interpreted by

the words enacted by Congress. Hamer v.

Neighborhood Housing Servs. Of Chicago, 583

U. S.

2

____

(2017); Slip Op. .7, 8, citing Dodd v.

Regardless of their Constitutional status.

c4

4

12

government's investigation was rife with procedural errors. Rippi's arguments are frivolous." Petitioner made no such argument,

putting forth, rather, that the government

failed to follow governing statutes, to wit 26

U.S.C. § 6203, the provisions of which were

duly enacted by Congress, in the administration of tax laws.

(2) Returns, declarations, statements, andoth

er documents required to be made under

any provision of the internal revenue laws or

regulations must be made under the penalties of

perjury. Public Law 83-591, 26 U.S.C. § 6065,

68A Stat. 749, as amended by Public Law 94-455,

90 Stat. 1824, 1834, is clear, and Petitioner is

guaranteed the Due Process thereof by the Fifth

Amendment to the United States Constitution.

The record below demonstrates that such

-

Due Process was denied to Petitioner.

26 U.S.C. § 6065, as amended in 1976, also

clearly holds serious Fifth Amendment implications.

14

returns until the Tax Reform Act of 1976 (October 4, 1976), Public Law 94-455, Title XIX, §

1906(a)(6), 90 Stat. 1824, amended 26 U.S.C. §

6065:

"...striking out subsection (b) (relating to

verification by oath), and by striking out in

subsection (a) the following: "(a) PENALTIES OF PERJURY.-"

Public Law 94-455, 90 Stat. 1824.

Regardless of the existence of a "a section

6020(b) return", the aforementioned "Forms

4340" and "Forms 2855" provided the only

foundation for the "presumption of correctness" afforded to the District Court.

That "presumption of correctness" (originating in Welch v. Helvering, 290 U.S. 111, 115

[19331) was based upon a form invented in the

Internal Revenue Manual5, similar to the form

at issue in FlOrsheim Bros. Drygoods Co. v.

United States, 280 U.S. 453(1930) (finding a

form discussed therein "was an invention of

the Commissioner").

See n 3.

4

16

STATUS OF PERTINENT REGULATION

Based upon substantive7

'

See: Chrysler v. Brown, 441 U.S. 281, at 301-302

(1979), wherein the Supreme Court stated:

"[Tin Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39

L.Ed.2d 270 (1974), we **1718 noted a characteristic inherent in the concept of a "substantive rule."

We described a substantive rule

or a "legislative-

-

type rule," id., at 236, 94 S.Ct., at 1074

as one

-

"affecting individual rights and obligations." Id., at

232, 94 S.Ct., at 1073. This characteristic is an important touchstone for distinguishing those rules

that may be "binding" or have the "force of law." Id.,

at 235, 236, 94 S.Ct., at 1074."

And, at 303:

"[T]he promulgation of these regulations must conform with any procedural requirements imposed by

Congress. Morton v. Ruiz, supra, at 232. For agency

discretion is limited not only by substantive, statutory grants of authority, but also by the procedural

requirements which "assure fairness and mature

consideration of rules of general application." NLRB

v. Wyman-Gordon Co., 394 U.S. 759, 764 (1969).

See also: Armstrong World Industries. Inc. v. Commissioner, 974 F.2d 422, 430 (3rd Cir. 1992):

"Moreover, legislative regulations not promulgated

under the general authority to "prescribe all needful

to

In

declaration, statement, or other document, to contain or be verified by a written declaration that it is made under the

penalties of perjury, such return, declaration, statement, or other document shall

be so verified by the person signing

j." (emphases added)

From 1977 onward, "...the form and instructions with respect to... tax imposed by

subtitle A..." at 26 U.S.0 § 1 was required to

contain or be verified by a written declaration

that it is made under the penalties of perjury

by the person signing it", per 26 C.F.R. §

1.6065-1(a).

A "substitute for return" with respect to...

[the same] tax imposed by subtitle A..." at 26

U.S.0 § 1 was required by 26 C.F.R. §

1.6065-1(a) to . ..contain or be verified by a

written declaration that it is made under the

penalties of perjury by the person signing it".

A "Form4340", invented in the Internal

Revenue Manual, purporting to be construed

as a legally valid "substitute for return" was

completely devoid of authority; a bootleg created by an outlaw.

C.

20

Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856); and John Jay, A

Hint to the Legislature of the State of New

York (1778) (quoting BLACKSTONE, 1 OF

THE RIGHTS OF PERSONS, COMMENTARIES ON THE LAWS OF ENGLAND

137-138 (Univ. of Chicago Press 1979) (facsimile of the first edition of 1765-1769).

The District Court clearly erred in allowing

Respondent, his agency, and subordinates, to

disregard provisions of law enacted by Congress and regulations promulgated by the Secretary; to disregard definitions enacted in, and

procedural duties imposed upon the Secretary

by, the Eighty-Third Congress in the INTERNAL REVENUE CODE, Public Law 83-591, as

amended; and abused its discretion in admitting hearsay evidence that was non-compliant

with Federal Rule of Evidence 803.

Returns, declarations, statements, and other documents required to be made under any

provision of the internal revenue laws or regulations must be made under the penalties of

22

Commissioner, 932 F.2d 1128, 1133 (5th Cir.

1991), affg. in part, revg. in part and remanding T.C. Memo. 1990-68; United States v. Besase, 623 F.2d 463, 465 (6th Cir. 1980); Schad

V. Commissioner, 87 T.C. 609, 618 (1986), affd.

without published opinion 827 F.2d 774 (11th

Cir. 1987); Jackson v. Commissioner, 73 T.C.

394 (1979); Weimerskirch v. C. I. R., 596 F.2d

358 (1979).

Respondent's reliance upon hearsay evidence, non-compliant with Federal Rule of Evidence 803, justifies reversal and remand.

CONCLUSION

In the context of the Fifth Amendment Due

Process Clause, the word "due" simply means

"owed", and Petitioner seeks only that which is

due him: "...the formal part, or method of proceeding..." of all language in all provisions of

all the tax law of the United States.

Based upon any or all of the foregoing reasons, and any combination thereof, the deci