# Petition — Rizzo v. Commissioner

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 444 U.S. 1014

## Text

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

— |

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

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