Petition — Rizzo v. Commissioner

SUPREME COURT OF THE UNITED STATES

October Term 1979

No 6 » «+

VIRGIL R. RIZZO, Petitioner,

against

COMMISSIONER OF INTERNAL REVENUE,

Respondent.

PEITION FOR A WRIT OF CERTORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

VIRGIL R. RIZZO

pro se

P.O. BOX 524

WARRENDALE, PA

15086

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é

TABLE OF CONTENTS

The Opinion Below...ccccccccccccccccces

JSUPELSEGLOTEGM coc 6 nhc 0605 0640600 ee nn eeees

Questions Presented..c.ccccccccccccscsece

Constitutional Provisions Involved.....

Statute and Regulations Involved.......

Statement of the Case. cccccccccccccccce

Reasons for Granting the Writ....ccceee

I.

Il.

Iii.

In holding that the Petitioner's

Appeals be dismissed for want of

jurisdiction, the United States

Court of Appeals for the Third

Circuit rendered a decision that

has so far departed from the

accepted course of judicial

proceedings that this Court must

grant certiorari to exercise its

power of supervision.cccccccccces

In dismissing the Petitioner's

appeals for want of jurisdiction

without determining the issue of

appealability, the United States

Court of Appeals for the Third

Circuit rendered a decision in

conflict with the decision of

other Courts of Appeal.ceccccscece

In holding that the Petitioner's

Appeals be dismissed for want of

or wWwWwW Nn NWN NM

10

IV.

jurisdiction, the United States

Court of Appeals rendered a

decision in conflict with that

entered by the Supreme Court..... 13

This Court should grant certiorari

to settle the question of whether

the denial of Petitioner's appeals

by the Third Circuit without full

review constitutes a viclation of

due process of law as guaranteed

by the Fifth Amendment.......ee0- 15

EEE IEEE aT

Appendix

Ae-Order of the Court Below.......... 18

B--Order of the Court Below Denying

Petition for Rehearing......c.cecoee 19

ii

se

CASES CITED

Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541 (1949).....0... 11, 16

Commissioner v. Frieder & Sons Co., October Term 1979

228 F.2d 478 (3rd Cir. 1955)...eee. 13, 14

Douglas v. California, 372 U.S.

FOP CIN F ek oh es Oo ccbcsvewcccnceves 36

Falik v. U.S., 343 F.2d 38

(2nd Cir. RE cake iow os ck waee ow 12 VIRGIL a RIZZO, Petitioner,

Louisville Builders Supply Co. v.

SUPREME COURT OF THE UNITED STATES

No.

against

Commissioner, 294 F.2d 333 (6th °

Cle. 1961) @eeeoeeeoeeeesoeeeeeoeeneeeeeseseeee zi meh » 14 COMMISSIONER OF INTERNAL RE zy

May v. Commissioner, 553 F.2d 1207 Respondent.

(9th Ciz. PE Wilk kWh on hohe c ne b 00 11

Ryan v. Commissioner, 517 F.2d 13 }

(7th Cir.) cert. denied, 423 PETITION FOR A WRIT OF CERTIORARI TO THE

U Pe e 892 (1975 ) eoeeeeeneteneeeepeeneeeee 1l UNITED STATES COURT OF APPEALS

United States v. California Eastern

Line, 546 U.S. 352 (1955 )acccccoves 24

United States v. Rizzo, 539 F.2d

FOR THE THIRD CIRCUIT

Be. Mee: > ee ee oe Petitioner prays that a writ of

UNITED STATES CONSTITUTION CITED certiorari issue to review the judgment

Pifth AmendMent.scccccccccccccsecscceces Dy LD herein of the United States Court of

STATUTES CITED Appeals for the Third Circuit entered in

26 UB ce Bea Fee in 0 06 oc cenes

4

the above-entitled case on May 7, 1979

28 U.S.C. Section lL292.ccccccccccccccce Gy Y's ’

petition for rehearing denied on July 18,

1979.

iii ale

OPINION BELOW

There was no opinion rendered in the

Court of Appeals. However, there is an

order by that Court dated May 7, 1979

granting Respondent's motion to dismiss

Petitioner's appeals for want of jurisdic-

tion.

The appeals were of decisions of the

Tax Court denying the Petitioner's Motions

for More Definite Statement and of decisions

denying Petitioner's Motions to Vacate or

Revise Decision. There was no opinion

rendered in the Tax Court.

JURISDICTION

The judgment of the United States

Court of Appeals was entered on May 7,

1979, petition for rehearing was denied

on July 18, 1979. The jurisdiction of

this Court is invoked under 28 U.S.C.

Section 1254 (1) and 26 U.S.C. 7482 (a).

QUESTIONS PRESENTED

1. Did the Court below err in holding

that the Petitioner's appeals be dismissed

for want of jurisdiction when the accepted

course of judicial proceedings pursuant to

26 U.S.C. 7482 (a), 26 U.S.6. 129%, ane

Title I and Title III of the Federal

Rules of Appellate Procedure properly

confers jurisdiction in that Court?

2. Did the Court below err in dismissing

Petitioner's appeals without first assum-

ing jurisdiction to determine the issue

of appealability?

3. Did the Court below err in dismissing

Petitioner's apveals for want of jurisdic-

tion when such dismissal is in conflict

with applicable decisions of this Court?

4. Was the Petitioner denied due process

of law, as guaranteed by the Fifth Amend-

ment, when his appeals were dismissed with-

out full and fair review?

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment V

"No person shall....be deprived of

life, liberty or property, without 4.

process of law...."

STATUTE INVOLVED

The statutes involved are 26 U.S.C.

7482 (a) and by reference 28 U.S.C. 1292.

United States Code, title 26:

Section 7482. Courts of review.

(a) Jurisdiction

The United States Courts of

Appeals shall have exclusive jurisdiction

to review the decisions of the Tax Court,

except as provided in section 1254 of Title

28 of the United States Code, in the same

manner and to the same extent as decisions

of the district courts in civil actions

tried without a jury; and the judgment of

any such court shall be final, except that

it shall be subject to review by the Supreme

Court of the United States upon certiorari

in the manner provided in section 1254 of

Title 28 of the United States Code.

STATEMENT OF THE CASE

This petition arises out of the dis-

missal for want of jurisdiction of Peti-

tioner's appeals in the Third Circuit

Court of Appeals. The Third Circuit with-

out opinion dismissed Petitioner's appeal

from an order of the United States Tax

Court denying Petitioner's Motions for

More Definite Statement and Motion to

Vacate or Revise Decision.

Sar

The Petitioner had filed Petitions for

Redetermination of assessed tax deficiencies

which were excessive, arbitrary, oppressive

and capricious, one deficiency of which

had alleged fraud. During the pretrial

proceedings Petitioner moved for more

definite statement and filed a statement

in lieu of attendance as provided for under

Rule 50 (c) of the Tax Court rules. Peti-

tioner's Statement was not reviewed by

the Tax Court when it denied this motion.

Decisions on these motions were critical

to determine the burden of proof, due

process, and procedural safeguards. The

Court's decision countenanced probable

abuse of process and improper and illegal

procedure on the part of the Internal

Revenue Service.

This case actually began as a tax

audit of Petitioner Doctor Rizzo and his

professional association, a general medical

practice. The Internal Revenue Service

during their investigation contacted the

Doctor's patients in a defamatory manner

and alleged improprities. The Doctor then

resisted and subsequently was found in

contempt, jailed, and fined. On appeal

the Fifth Circuit reversed. United States

v. Rizzo, 539 F.2d 458 (5th Cir. 1976).

Facing the Statute of Limitations

the Commissioner of Internal Revenue

arbitrarily assessed tax deficiencies

against the Doctor and his Professional

Association. The Commissioner based each

arbitrary and excessive deficiency on the

other, a circulus viciosus (arguing in a

circle). Because of this excessiveness

the Petitioner was then forced to file

for redetermination in Tax Court. During

the pretrial proceedings the Petitioner

moved for more definite statement. Because

the deficiencies were without factual basis

or rational foundation and made without a

proper or accepted method of determination,

the Petitioner's motion was manditory.

Without this clarification the Petitioner

is befallen with prejudice, burdened with

undue labor, time and expense, unable

properly to prepare for trial, and subject

to surprise, delay and injustice. His

motion, however, was improvidently denied.

Petitioner filed a timely notice of

appeal on December 2, 1978. A motion to

consolidate both appeals was granted on

Avril 24, 1979. On March 14, 1979 the

Commissioner=-Respondent filed a Motion

to Dismiss Appeals and Petitioner filed

an objection thereto. Petitioner's memo-

randum filed with his objection supported

the procedural issues of jurisdictional

review of the Appellate Court. Because

of the complexity Petitioner filed a

Supplemental Memorandum opposing the

Commissioner's Motion to Dismiss. This

Memorandum elaborated on the merits

supporting the appealed issues. The

Appellate Court refused to accept Peti-

tioner's Supplemental Memorandum and on

May 7, 1979 dismissed the appeals for

want of jurisdiction excluding Petitioner

from having his day in court.

On June 25, 1979, upon motion, the

Third Circuit Court of Appeals granted

permission for Petitioner to file a

petition for rehearing out of time but

denied his request for an opinion upon

what grounds the Court granted Appellee's

motion to dismiss appeals. Petitioner

was not permitted to know why his appeals

were not accepted. The Petition for

Rehearing was denied on July 18, 1979.

This Petition for Writ of Certiorari

follows.

REASONS FOR GRANTING THE WRIT

I.

In holding that the Petitioner's

appeals be dismissed for want of jurisdic-

tion, the United States Court of Appeals for

the Third Circuit rendered a decision that

has so far departed from the accepted course

of judicial proceedings that this Court must

grant certiorari to exercise its power of

supervision.

Important federal jurisdictional and

procedural issue are involved in the denial

of the Petitioner's appeals by the Third

Circuit. Pursuant to 26 U.S.C. 7482 (a),

28 U.S.C. 1292, Title I and Title III of

the Federal Rules of Appellate Procedure,

the United States Court of Appeals for the

Third Circuit has jurisdiction to hear

Petitioner's appeals. On the contrary, the

Third Circuit improperly dismissed Petition-

er's appeals for want of jurisdiction.

Section 7482 (a) of the Internal

Revenue Code of 1954 granting jurisdic-

tion in the Appellate Court reads in

pertinent part, "(a) Jurisdiction-The

United States Court of Appeals should

have exclusive jurisdiction to review the

decisions of the Tax Court." The dismiss-

al of Petitioner's appeals by the Third

Circuit is in direct conflict with this

statute and its construction as intended

by Congress.

Title I and Title III of the Federal

Rules of Appellate Procedure also grant

jurisdiction in the Court of Appeals.

Title I reads in pertinent part "These

rules govern procedure in appeals to

United States district courts and the

Tax Court of the United States....These

rules shall not be construed to extend

or limit the jurisdiction of the courts

of appeals as established by law." Title

I and Title III rules have been followed

by the Petitioner; however, in direct

conflict with these rules the Third Cir-

cuit dismissed Petitioner's appeals for

want of jurisdiction improperly limiting

its jurisdiction as established by law.

This Court should grant certiorari to

exercise its supervision and direction.

Section 1292 of 28 U.S.C. also

confers appellate jurisdiction in the

Court of Appeals if the criteria under

that Section are met. These criteria

contended by the Petitioner to have been

present were not evaluated by the Third

Circuit when it dismissed Petitioner's

appeals, thus improperly limiting its

jurisdiction.

The dismissal of Petitiuner's appeals

by the Court of Appeals without evaluation

is inconsistent in theory and practice in

that it directly contradicts the intent

and meaning of the statutes and the

Federal Rules of Appellate Procedure.

Therefore, this Court in the exercise

of its supervisory powers over the federal

judiciary should grant certiorari to settle

these questions in the administration of

justice.

II.

In dismissing the Petitioner's

appeals for want of jurisdiction without

determining the issue of appealability,

the United States Court of Appeals for

the Third Circuit rendered a decision

in conflict with the decision of other

Courts of Appeal.

The Third Circuit Court of Appeals

dismissed Petitioner's appeals without

assuming jurisdiction to determine the

issue of appealability in conflict with

the decisions of other Courts of Appeal.

This procedure of the Third Circuit is

directly in conflict with the decision of

the Court of Appeals for the Sixth Circuit

a*

in Louisville Builders Supply Co. v.

Commissioner, 294 F.2d 333 (6th Cir. 1961),

the Court of Appeals for the Seventh

Circuit in Ryan v. Commissioner 517 F.2d

13 (7th Cir.) cert. denied, 423 U.S. 892

(1975), the Court of Appeals for the Ninth

Circuit in May v. Commissioner, 553 F.2d

1207 (9th Cir. 1977) and the Court of

Appeals for the Second Circuit in Falik

v. United States, 343 F.2d 38 (2nd Cir.

1965).

In. these cases the Court of Appeals

assumed jurisdiction of appealed pretrial

orders entered in tax litigation to deter-

mine appealability in contrast to the

approach taken by the Third Circuit in

the instant case where the appeal was

simply dismissed for want of jurisdiction

without determining the proposed appealable

issues. The Third Circuit dismissed the

Petitioner's appeals of pretrial Tax Court

orders without opinion despite allegations

that the "collateral order doctrine" of

Cohen v. Beneficial Industrial Loan Corn.,

337 U.S. 541 (1949) applied and despite

representations that Petitioner's rights

under the Constitution and the Statutes

had been violated.

This decision of the Third Circuit

sito

is in direct conflict with the holding of

the Court of Appeals for the Second Circuit

in Falik v. United States, supra. In that

case the Court not only assumed jurisdiction

to determine the appealability of a pretrial

motion involving tax litigation but also

maintained jurisdiction to render a deci-

sive opinion on that appeal. The procedure

and decision of the Court of Appeals for

the Second Circuit in Falik and the action

of the Court of Appeals for the Third

Circuit in the instant case set forth

critically different procedures. This

Court should grant certiorari to resolve

this difference.

In refusing to assume jurisdiction

of the Petitioner's appeals the Third

Circuit has also acted in direct conflict

with the holding of the Court of Appeals

for the Sixth Circuit in Louisville Build-

ers Supply Co. v. Commissioner, supra.

In that case the Appellate Court assumed

jurisdiction of an appeal of a pretrial

Tax Court order regarding a deposition.

Not only did the Court assume jurisdiction

and reverse the Tax Court but also in its

concise opinion it struck down allegations

that appellate courts do not have juris-

diction over interlocutory Tax Court appeals.

-12-

The opinion and decision of the Court of

Appeals for the Sixth Circuit in Louisville

Builders and the action of the Court of

Appeals for the Third Circuit in the case

at bar set forth contradictory standards.

The standards and procedure of the Third

Circuit in failing to review appeals of

pretrial Tax Court decisions are in direct

conflict with those of other Courts of

appeals and this Court should grant

certiorari to resolve these conflicts.

Iil.

In holding that the Petitioner's

appeals be dismissed for want of juris-

diction, the United States Court of Appeals

rendered a decision in conflict with that

entered by the Supreme Court of the United

States.

The Court of Appeals for the Third

Circuit has said in Commissioner v.

Frieder and Sons Co., 228 F.2d 478 (3rd

Cir. 1955) that an appealable decision of

the Tax Court within the meaning of Section

7482 (a) of the Internal Revenue Code of

1954 is one dismissing the proceeding or

one formally determining a deficiency

or lack of a deficiency. If the Third

Circuit applied this criteria to dismiss

«13~

Petitioner's appeals, their decision

is in conflict with the decision of the

United States Supreme Court in United

States v. California Eastern Line, 348

U.S. 351 (1955). There this Court at

353 said:

The language of § 1141 (Sec-

tion 7482 (a) of the Internal

Revenue Code of 1954) is

broad enough to justify re-

view of Tax Court renegoti-

ation orders and we cannot

say that because the section

was originally passed primar-

ily to authorize review of

decisions on revenue matters

it should be held inapplicable

to decisions on other justi-

cable matters entrusted to

Tax Court by Congress.

Clearly Tax Court renegotiation orders

are neither orders "(1) dismissing the

proceeding pending before it, whether

for lack of jurisdiction or otherwise,

or (2) formally determining a deficiency."

These two criteria set forth in Commissioner

v. Frieder and Son Co., supra, are then in

conflict with the decision of the United

States Supreme Court. Accord Louisville

Builders Supvly Co. v. Commissioner, supra.

Therefore, the narrow interpretation of the

word "decision" to exclude Petitioner's

appeals is improper and contrary to the

words of the Supreme Court and Congress.

ihe

Certiorari should be granted be-

cause the decision of the Court of Appeals

for the Third Circuit on the question of

jurisdiction of Tax Court appeals is in

conflict with applicable decisions of

this Court.

IV.

This Court should grant certiorari

to settle the question of whether the

denial of Petitioner's appeals by the

Third Circuit without full review consti-

tutes a violation of due process of law

as granted by the Fifth Amendment.

The Court of Appeals for the Third

Circuit failing to review the full facts

behind Petitioner's appeals dismissed it

for want of jurisdiction. In so holding

it excluded Petitioner's appeal rights and

denied him due process under the Fifth

Amendment.

The Petitioner, in opposition to

the Commissioner's motion to dismiss

appeals, filed a memorandum supporting

the procedural issues of jurisdictional

review of the Appellate Court and a

supplemental memorandum elaborating on

the merits supporting the appealed issues.

The supplemental memorandum was not reviewed

ajS<

by the Court as it was not filed under

its direction. By failing to evaluate

Petitioner's supplemental memorandum and

by subsequently dismissing his appeal,

the Appellate Court then denied full

review of Petitioner's presentation and

deprived him of his right to appeal. This

right to appeal cannot so be the subject

of invidious discrimination depriving

Petitioner of due process. Douglas v.

California, 372 U.S. 353 (1963).

The Court of Appeals also failed to

assume jurisdiction to determine if Peti-

tioner's allegation that the decisions

appealed are of such a nature that if

appellate review were postponed immediate

prejudice or irreparable injury would

result. The applicability of this "collat-

eral-order doctrine" as espoused by Mr.

Justice Jackson in Cohen V. Beneficial

Industrial Loan Corp., supra, must be

evaluated before the Appellate Court could

dismiss the appeal; otherwise Petitioner

would be deprived of a full review and

subsequently due process. This Court

should grant certiorari to resolve these

important questions of procedural due

process in which Petitioner's appeals

were dismissed without full review.

-16-

CONCLUSION

For the reasons aforesaid it is

respectfully prayed that a writ of

certiorari be granted to review the

judgment of the United States Court

of Appeals for the Third Circuit.

aa aes | nee

VIRGIL R. ees

a}'te

UNTTED STATES COURT OF APPEALS FOR THE TIIIRND CIRCUIT

No. 7924299/ 1200

April 20, 1979

VIRGIL &. RIZZO,

Aopellaat

vs.

COMMISSIONER OF LYTERNAL R£VENUE

(Tax Court Docket No. 4701-78)

Presemt: ADAMS, SISSCUS and VEIS, Circuit Judges.

VIRGIL aizzo

ve.

COMMISSIONER OF INTERNAL REVENED

Virgil 2. Rizzo, Appellanc

(Tz C, Docket No, 4703-785

l. Appellee's sotion to dismiss appeals for want of jurisdiction,

with Memorandum ia support of aogion,

2. Appellanc's objection to appellee's notion to dismiss appeals,

with ‘femorandum ia support of notion,

3. Appellanc's supplemental aesorandum in support of appeilanc's

objection to appellee's motion to dismiss appeals,

(fet filed unless Court directs)

in the abowe listed for Monday, Aoril 30, 1979, or as the Court decides.

Respectfully,

al Oe.

Crark

——

‘

%.

—me Se”

3

,

The foregoing Motion is/are

By the Court,

Dated: May 7, 1979

APPENDIZ a

eames. 16. 1 6. 10 Oe

Anited States Court of Appeals

FOR THE THIRD CIRCUIT

oS -_7971199/1200

VIRGIL R. RIZZO,

Appellant

SUR PETITION FOR REHEARING

BEPORS:.THE ORIGINAL PANEL

Present: ADAMS, GIBBONS and WEIS, Circuit Judges.

The petition for rehearing fled by Appellant

im the above entitled case having bean submitted to the judges who participated in the

dectsion of this court ammbteca iM tiweechssceped site rents poiges ricer ett tr weenie

xuttvweemtess and no judge who concurred in the decision having asked for rehearing,

EEE DOCAMEIPORCaCERICMN TERE the petition for rehearing is denied.

By the Court,

Dated: July 18, 1979 Circuit Judge

APFENDIZ 3

-19<

PP Aen) a 253