Petition for Rehearing — Carrie Rae Eldridge, Petitioner v. Commissioner of Internal Revenue

NO. 21-261

In The

SUPREME COURT OF THE UNITED STATES

Carrie Rae Eldridge,

Petitioner

vs.

United States of America,

Respondent

On Petition for Re-Hearing

Under Rule 44

PETITION FOR

RE-HEARING UNDER RULE 44

Carrie Rae Eldridge,

in propria persona

1247 Ramona Street

Ramona, CA 92065

(858)663-5548

ISSUE PRESENTED

The Petitioner was denied due process at law in this

litigation because there was no proper declaration, nor

full disclosure made on the record of the action, of a

fully granted subject-matter jurisdiction of the district

court that was lawfully taken to allow the court to

uphold and enforce the United States’ claim for a

direct tax without constitutional limitation under

alleged authority of the 16th Amendment.

Further, due process was denied because the U.S. 9th

Circuit Court of Appeals lacked subject-matter

jurisdiction over the claims of this dispute, for lack of

an enabling enforcement clause in the 16th

Amendment to constitutionally authorize the U.S.

Congress to write new law to enforce that new and

unlimited, direct tax and taxing power.

TABLE OF CASE AUTHORITIES

Case

Page

Brushaber v. Union Pacific R.R. Co.,

240 U.S. 1, 11-13 (1916).......... ................

19

Hudson v. Coleman, 347 F.3d 138, .

141 (6th Cir. 2003)...................................

9

Kazubowski v. Kazubowski,

45 Ill.2d 405, 259 N.E.2d 282, 190........

9

Klugh v. U.S., D.C.S.C.,

610 F. Supp. 892, 901..............................

9

Kokkenen V. Guardian Life Ins. Co.

of America, 511 US 375 (1994)..............

7

Pennoyer u. Neff,

95 US 733, 24 L.Ed. 565...........................

9

Stanton u. Baltic Mining Co.,

240 U.S. 103 (1916)..................................

11

State v. Swiger,

125 Ohio.App.3d 456 (1995)...................

14

. The State of

Massachusetts, 37 U.S. 709, 718 (1838)

7

Steel Co., aka Chicago Steel & Pickling Co.

v. Citizens for A Better Environment,

No. 96-643, 90 F.3d 1237 (1998)...........

8

Steward Mach. Co. v. Collector,

301 U.S. 548 (1937),................................ 11,12

United States v. Cotton,

535 U.S. 625, 630 (2002).........................

14

Williamson v. Berry, 8 HOW. 945,

540 12 L.Ed. 1170, 1189 (1850).............

10

ii

CAUSE FOR PETITION OF RE-HEARING

Petitioner hereby timely submits this Petition for ReHearing in a final plea for both justice and for the due

process at law that the Petitioner is entitled to in the

federal Courts under the U.S. Constitution.

Petitioner has thus far in this litigation, been denied

the required due process at law of a full disclosure

and proper establishment on the record of the action,

of the fully granted subject-matter jurisdiction of the

federal courts to act to enforce the claim for the

payment of a direct tax that has been made by the

United States’ Commissioner in this case under

alleged authority of the 16th Amendment alone.

It is a virtual legal impossibility under our system of

Constitutional Law for the 16th Amendment to have

1

created a new subject-matter jurisdiction of the

federal courts to take, to enforce a new taxing power

that is alleged in this case by the United States’

Commissioner to have been newly created by the

adoption of the 16th Amendment in 1913, because the

U.S. Congress is not constitutionally authorized to

write new law under the Amendment for lack of an

enabling enforcement clause in that Amendment.

That lack of a grant of enforcement power to

Congress, made by an enabling enforcement clause in

that Amendment, is a fatal defect in any claim to a

subject-matter jurisdiction that is allegedly taken

under alleged authority of the 16th Amendment alone.

The federal courts lack the legal authority and

constitutional ability to lawfully take subject-matter

jurisdiction under authority of the 16th Amendment

2

because the U.S. Congress is not constitutionally

authorized to write law under that Amendment by an

enabling enforcement clause in it.

That statutory enforcement authority of Congress,

i.e.: to write law that is constitutionally authorized.

is an essential and indispensable element of the

federal courts’ ability to properly establish that a

fully-granted subject-matter jurisdiction of the court

does exist, and may be lawfully taken by the court to

enforce the specific and particular claim for tax at

issue, i.e.: - here, the Commissioner wrongfully

demands the payment of an allegedly direct tax that

is not subject to any constitutional limitations. This

is a fatally erroneous argument that is bereft of all

constitutional and precedential foundations and is

outside the granted subject-matter jurisdictions of the

3

court that do exist to enforce constitutional taxation,

i.e.: indirect taxes subject to the rule of uniformity,

and

direct

taxation

subject

to

the

rule

of

apportionment.

There is no exception to these rules. Each and every

taxing power that is constitutionally granted, is

subject to one of these two limitations.

The

federal

courts,

for

want

of an

enabling

enforcement clause in the 16th Amendment, lack the

ability to lawfully take a granted subject-matter

jurisdiction of the court under an alleged authority of

the 16th Amendment alone, to enforce any claim for a

direct tax against an American citizen in a federal

court proceeding.

4

/

Subject-matter jurisdiction of the federal courts to

enforce taxation cannot lawfully be constitutionally

established, and does not exist, under the 16th

Amendment (alone).

It is fatal error for the United States and its

Commissioner

to

claim

that

subject-matter

jurisdiction exists under the 16th Amendment, when

the U.S. Congress isn’t even authorized to write law

by

an

enabling

Amendment.

If

enforcement

the

U.S.

clause

in

the

Congress

is

not

constitutionally authorized to write law by an

enabling enforcement clause of either the original

Constitution or an Amendment, then the federal

courts cannot possibly establish or lawfully take

subject-matter jurisdiction under alleged authority of

that deficient Amendment.

5

AH of the other Amendments to the Constitution

include their own enabling enforcement clause to

authorize the XJ.S. Congress to write new law.

But

not the 16th Amendment.

It

is

irrefutable

that

there

is

no

enabling

enforcement clause in the 16th Amendment. Thus, it

is constitutionally impossible for any subject-matter

jurisdiction of the federal courts to have been created

thereunder.

The

16th Amendment,

absent an

enabling enforcement clause, is irrelevant to the

legal issue of the subject-matter jurisdiction of the

federal courts.

Subject-matter jurisdiction therefore, plainly and

clearly, can be neither established nor lawfully

taken under the 16th Amendment, as erroneously

6

done in this case, because the U.S. Congress is not

constitutionally authorized to write any new law

under that Amendment, and the federal courts can

only lawfully take jurisdiction to enforce law that

Congress is constitutionally authorized to write.

"Federal courts are courts of limited

jurisdiction.

They possess only power

authorized by Constitution and statute, which

is not to be expanded by judicial decree. It is to

be presumed that a cause lies outside this

limited jurisdiction, and the burden of

establishing the contrary rests upon the party

asserting jurisdiction." Kokkenen V. Guardian

Life Ins. Co. of America, 511 US 375 (1994)

"However late this objection has been made or

may be made in any cause in an inferior or

appellate court of the United States, it must

be considered and decided before any

court can move one further step in the

cause, as any movement is necessarily the

exercise of jurisdiction. Jurisdiction is the

power to hear and determine the subject

matter in controversy between parties to a

suit, to adjudicate or exercise any judicial

power over them;” State of Rhode Island v. The

State of Massachusetts, 37 U.S. 709, 718 (1838)

7

In a long and venerable line of cases, the

Supreme Court has held that, without proper

jurisdiction, a court cannot proceed at all, but

can only note the jurisdictional defect and

dismiss the suit. See, e.g., Capron v. Van

Noorden, 2 Cranch 126; Arizonans for Official

English v. Arizona, 520 U.S. 43, (1997). Bell u.

Hood, supra; National Railroad Passenger

Carp. v. National Assn, of Railroad Passengers,

414 U.S. 453, 465, n. 13; Norton v. Mathews,

427 U.S. 524, 531; Secretary of Navy v. Avrech,

418 U.S. 676, 678 (per curiam); United States

v. Augenblick, 393 U.S. 348; Philbrook v.

Glodgett, 421 U.S. 707, 721; and Chandler v.

Judicial Council of Tenth Circuit, 398 U.S. 74,

86-88, distinguished. For a court to pronounce

upon a law's meaning or constitutionality

when it has no jurisdiction to do so is, by very

definition, an ultra vires act. Pp. 93-102. Steel

Co., aka Chicago Steel & Pickling Co. v.

Citizens for A Better Environment, No. 96-643,

90 F.3d 1237 (1998)

"Due process of law in each particular case

means such an exercise of the powers of the

government as the settled maxims of law

permit and sanction, ... A course of legal

proceedings according to those rules and

principles which have been established in our

systems of jurisprudence for the enforcement

and protection of.private rights. To give such

proceedings any. validity there must be a

tribunal competent by its constitution 8

?

'S'.

■i?'

that is, by the law of its creation - to pass

upon the subject-matter of the suit; and, if

that involves merely a determination of the

personal liability of the defendant, he must be

brought within its jurisdiction by service of

process within the state, or his voluntary

appearance. Pennoyer v. Neff, 95 US 733, 24

L.Ed. 565.

“An orderly proceeding ... before a court

having power to hear and determine the

case.” Kazubowski v. Kazubowski, 45 I11.2d

405, 259 N.E.2d 282, 190.

"It is well established that federal courts are

courts of limited jurisdiction, possessing only

that power authorized by the Constitution

and statute." Hudson v. Coleman, 347 F.3d

138, 141 (6th Cir. 2003)

"Judgment is a "void judgment" if court that

rendered judgment lacked jurisdiction of the

subject matter, or of the parties, or acted in a

manner inconsistent with due process." Klugh

v. U.S., D.C.S.C., 610 F. Supp. 892, 901.

"Courts are constituted by authority and they

cannot go beyond that power delegated to

them. If they act beyond that authority, and

certainly in contravention of it, their

9

judgments and orders are regarded as

nullities; they are not voidable, but simply

void, and this even prior to reversal."

Williamson v. Berry, 8 HOW. 945, 540 12 L.Ed.

1170, 1189 (1850)

The only direct taxation that the U.S. Congress is

constitutionally authorized by an applicable enabling

enforcement clause of the Constitution to write, is the

direct taxation that is authorized (and limited) by

Article I, Section 2, clause 3, and Article I, Section 9,

clause 4.

All direct taxation under those Article I clauses,

without exception, must be “apportioned to the

“several States” for payment, and must also be laid in

“proportion to the last census”, regardless of the

adoption of the 16th Amendment.

"The subject matter of taxation open to the

power of the Congress is as comprehensive as

that open to the power of the states, though the

10

Ai

method of apportionment may at times be

different. "The Congress shall have power to

lay and collect taxes, duties, imposts and

excises." Art. 1, § 8. If the tax is a direct

one, it shall be apportioned according to the

census or enumeration.

If it is a duty,

impost, or excise, it shall be uniform

throughout the United States. Together,

these classes include every form of tax

appropriate to sovereignty. Cf. Burnet v.

Brooks, 288 U. S. 378. 288 U. S. 403. 288 U. S.

405; Brushaber v. Union Pacific R. Co., 240 U.

S. 1, 240 U. S. 12." Steward Mach. Co. v.

Collector, 301 U.S. 548 (1937), at 581

"... by the previous ruling [Brushaber v Union

Pacific R. Co.] it was settled that the

provisions of the Sixteenth Amendment

conferred no new power of taxation but

simply prohibited the previous complete and

plenary power of income taxation possessed by

Congress from the beginning from being taken

out of the category of indirect taxation to

which it inherently belonged" Stanton v.

Baltic Mining Co., 240 U.S. 103 (1916), at 112

"Whether the tax is to be classified as an

"excise" is in truth not of critical importance. If

not that, it is an "impost" {Pollock v. Farmers'

Loan & Trust Co., 158 U. S. 601, 158 U. S.

622, 158 U. S. 625; Pacific Insurance Co. v.

Soule, 7 Wall. 433, 74 U. S. 445), or a "duty"

11

(Veazie Bank v. Fenno, 8 Wall. 533, 75 U. S.

546, 75 U. S. 547; Pollock v. Farmers' Loan &

Trust Co., 157 U. S. 429, 157 U. S. 570;

Knowlton v. Moore, 178 U. S. 41, 178 U. S. 46).

A capitation or other "direct" tax it

certainly is not." Steward Mach. Co. v.

Collector, 301 U.S. 548 (1937), at 581-2

No direct, or completely unlimited, tax or taxation

can be constitutionally enforced by the U.S. courts as

a result of the adoption of the 16th Amendment (or

any other alleged authority of the Constitution). This

is true because there inarguably is no enabling

enforcement clause in the

16 th Amendment to

properly constitutionally authorize the U.S. Congress

to write any new laws to enforce upon the American

citizens, a new, unapportioned, disproportionately

imposed,

direct tax without

limitation.

12

any

constitutional

Without an enabling enforcement clause that is made

applicable to the specific taxing power alleged

invoked and exercised by the United States in

practice, subject-matter jurisdiction of the federal

courts is lacking and cannot be properly identified,

legally established, or lawfully taken, by any federal

court, to allow the court to enforce a claim for tax as a

direct and unlimited tax.

An applicable enabling enforcement clause is an

essential and indispensable element of properly

establishing that there is a fully granted subjectmatter jurisdiction of the court that actually exists

under constitutionally authorized law, and that can

be lawfully established, invoked, and taken by a

federal court, to allow it to enforce a specific claim for

13

particular type of tax, i.e.: either as a uniform

indirect tax, or an apportioned direct tax.

"Subject-matter jurisdiction, because it

involves a court's power to hear a case, can

never be forfeited or waived. Consequently,

defects in subject-matter jurisdiction require

correction regardless of whether the error was

raised in district court." United States v.

Cotton, 535 U.S. 625, 630 (2002); Accord

Jordon v. Gilligan, 500 F.2d 701 (6th CA,

1974) ("[A] court must vacate any judgment

entered in excess of its jurisdiction."); State u.

Swiger, 125 Ohio.App.3d 456 (1995)

Previous to the adoption of the 16th Amendment the

taxation of income had been repeatedly upheld by

this Supreme Court as a legitimate and constitutional

exercise of the indirect taxing powers given to

Congress to tax uniformly by Impost, Duty, and

Excise under the power and authority granted by

Article I, Section 8, clause 1 of the U.S. Constitution.

Those powers are made enforceable at law by a

constitutionally

authorized

14

Congress

under

the

original Necessary and Proper” enabling enforcement

clause of Article I, Section 8. clause 18. see Springer

v. U. S., 102 U.S. 586, 26 L. ed. 253 (1880); Pollock v.

Farmer's Loan & Trust, 158 U.S. 601, (1895); Pacific

Ins. Co. v. Soule, 7 Wall. 433, 19 L. ed. 95 (1868);

Spreckels Sugar Ref. Co. v. McClain, 192 U.S. 397, 48

L. ed. 496, 24 Sup. Ct. Rep. 376. (1904); Flint v. Stone

\

Tracy

Co.,

220

U.S.

107

(1911);

Stratton's

Independence, Ltd. v. Howbert; 231 U.S. 399, at 416417 (1913), and later, Bowers v. Kerbaugh-Empire

H

Co., 271 U.S. 170 (1926).

Of course, previous to the adoption of the 16th

Amendment, all direct taxation under Article I had to

be apportioned to the States1 and imposed in

proportion to the last census2.

1 Article 1, Section 2, cl. 3

2 Article I, Section 9, cl. 4

15

Therefore, any claim

to an unlimited power to tax directly and without

limitation as a result of the adoption of the 16th

Amendment, would certainly be a claim by the

United States to a new power to tax, allegedly

created by the Amendment. Any such new power, in

order to be enforceable in the federal courts, would

require that an enabling enforcement clause be

present in the Amendment to authorize the U.S.

Congress to write law thereunder to enforce the new,

previously

non-existent

power

to

tax

(without

limitation). And only then could a federal court be

able to identify both of the essential constitutional

elements necessary to fully establish that there was a

fully-granted subject-matter jurisdiction of the court

that was created and existed, and that could lawfully

be taken by the court over the claim made for the

16

enforced payment of a direct tax alleged owed under

authority of the 16th Amendment.

In this case however, the Commissioner, the U.S. Tax

Court, and the Ninth Circuit, have all specifically

rejected indirect taxation as the constitutional basis

and

legal

foundation

for

the

subject-matter

jurisdiction of the court in this case, and have instead

erroneously endorsed the Commissioner’s unlawful

operational practice of enforcing the federal income

tax as a new power to tax directly and without any

limitation under alleged authority of the

16th

Amendment, despite the irrefutable fact that there is

no enforcement authority granted to Congress under

the Amendment because of the fatal defect of the

Amendment’s lack of an enabling enforcement clause

to constitutionally authorize the U.S. Congress to

17

write new law under authority of the Amendment, to

enforce this alleged new and unlimited direct tax.

In point of fact, Article I, Section 2, clause 3 of the

U.S.

Constitution

"Representatives

and

still

mandates

direct

Taxes

that:

shall

be

apportioned among the several States”, and Article I,

Section 9, clause 4 still commands that: "No

Capitation, or other direct, Tax shall be laid, unless in

Proportion to the Census or Enumeration herein

before directed to be taken".

These limitation clauses

still exist in the U.S. Constitution. They have not

been repealed, nor amended, by any text of any

Amendment adopted while stating such intended

legal effect.

“But it clearly results that the proposition and

the contentions under it, if acceded to, would

cause one provision of the Constitution to

destroy another; that is, they would result in

bringing the provisions of the Amendment

18

exempting a direct tax from apportionment

into irreconcilable conflict with the general

requirement that all direct taxes be

apportioned. Moreover, the tax authorized by

the Amendment, being direct, would not come

under the rule of uniformity applicable under

the Constitution to other than direct taxes, and

thus it would come to pass that the result of

the Amendment would be to authorize a

particular direct tax not subject either to

apportionment or to the rule of geographical

uniformity, thus giving power to impose a

different tax in one state or states than was

levied in another state or states. This result,

instead of simplifying the situation and

making clear the limitations on the taxing

power, which obviously the Amendment must

have been intended to accomplish, would

create radical and destructive changes in

our constitutional system and multiply

confusion ... In the matter of taxation, the

Constitution recognizes the two great classes

of direct and indirect taxes, and lays down two

rules by which their imposition must be

governed, namely, the rule of apportionment,

as to direct taxes, and the rule of uniformity as

to duties, imposts, and excises.” Brushaber u.

Union Pacific R.R. Co., 240 U.S. 1, 11-13

(1916)

19

Therefore, as a tax without apportionment, as stated

in the 16th Amendment, the federal courts lack the

subject-matter jurisdiction necessary to enforce the

personal income tax as a direct tax (without that

limitation), as they have erroneously done in this

litigation.

RELIEF REQUESTED

Petitioner now calls upon this Supreme Court to

honor their constitutional duty to ensure that the

federal courts do not erroneously enforce claims for

tax without the subject-matter jurisdiction necessary

to lawfully do so.

20

-m

PRAYER FOR JUSTICE

Petitioner now prays this court will GRANT this

Petition for Re-hearing.

Respectfully,

Carrie RaeEldridge,

in propria persona

1247 Ramona Street

Ramona, California 92065

(858)663-5548

21