# Petition — Gust v. Commissioner of Taxation & Finance

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 910

## Text

Rorame Court, UL ae }
FILED ' :

MAR 17 1980

In The | MICHAEL RODAK, JR, CLERK

Supreme Court of the United States

October Term, 1979

79-143
ALAN F. TAYLOR, Petitioner,

US.

COMMISSIONER OF TAXATION AND FINANCE, JOHN J.
CONNORS, E. ALLEN SMITH, AND F. COLBY,

No.

Respondents,
and

DAVID H. GUST, Peitioner
vs.

JOHN J. CONNORS, Respondent,
and

DAVID H. GUST, Petitwner,
US.

RONALD BRADSHAW, JR., Respondent,
and

DAVID H. GUST, Petitioner,
vs.

DAVID FIELDS, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
SECOND CIRCUIT COURT OF APPEALS

ALAN F. TAYLOR DAVID H. GUST
Petitioner, Pro Se Petitioner, Pro Se
242 S. Union Street 399 Parma Center Road
Spencerport, New York 14559 Hilton, New York 14468
(716) 352-0239 (716) 392-9369

The Daily Record ( 5822 Spaulding Law Printing
Rochester, New York ) Syracuse, New York

TABLE OF CONTENTS

Opinion Below . . 2.5.25. c ccc eens
pe EER poe een ote € <a
Question Presented ......... 02. e cece ee eee ee eees
a ir
Reason for Granting the Writ..............000-055

POINT I — Respondents attack our accusatorial system
of criminal WAMAGE. 5. wo bn i ce ee eee eens

POINT II — The Examiner, Respondent Connors herein,
is given NO POWER to enforce compliance or to
impose sanctions for non-compliance, Reisman vs.
Caplin, 375 US 440 at 445 (1964) emphasis added... . . - :

POINT III — Petitioners have been subjected to a
coercive punishment for claiming the privilege which
TTS Bia Oo Nii eae

POINT IV — The state misled the district court by
misstating the reason for the penalty............-.

POINT V — Court below improperly dismissed the
complaint without applying the standards set forth in
Haines vs. Kerner, 404 US 519 at 520. ............-.

mp a eS

ADDENDUM

ADDENDUM 1 — Letter of John J. Connors To David H.

CRE Oe 1 aS a a ee eo

A-2

v1

Page
ADDENDUM 3 — Letter of David H. Gust To John J.
MEO ERS ey Gare re ee ee ees eee L A-3
ADDENDUM 4 — [etter of Attorney General To Judge
ONS ae ane, en) ares Ce eres ya eee A-4
ADDENDUM 5 — Notice and Demand for Payment of
ES Eee ee oe ee ee A-6

mW

TABLE OF AUTHORITIES CITED

Cases Page
Couch vs. US. 409 US 332 (1978) .. 2... ee ee eee 4
Counselman vs. Hitchcock, 142 US 547 (1892). .......-- 4
Gardner vs. Broderick, 392 US 273 (1968). .......--+-- 3
Garner vs. US, 424 US 648 (1976)... . eee 3,5
Garrity vs. New Jersey, 385 US 493 (1967)... ....----- 3
Haines vs. Kerner, 404 US 519 .. 2.6... ee eee 8
Lefkowitz vs. Cunningham, 431 US 273 (1977). ...----- 3,5
Lefkowitz vs. Turley, 414 US 70 (1978)... ...-----++- 3
Malloy vs. Hogan, 378 US 1 (1964)... 66-6. ee ee ee eee 4
Miranda vs. State of Arizona, 86S. Ct. 1604 ........-. §
Murphy vs. Waterfront Commission, 378 US 52 (1964)... 4
Riesman vs. Caplin, 375 US 440 (1964). .........5---- 5
Santitationmen vs. Comm’r of Sanitation, 392 US 280

Constitution

United States Constitution
LOSE GIG TEC OORT COR ES 3,4

Codes

NII) cet 5 5 arr et watne ines 2
ee oe ea tuuia x) kaa eeems 2
MN es oe RO BO 2
NY State Tax Law §685(i)... 0... eee eee eee 3, 6, 7

In The
Supreme Court of the United States

October Term, 1979

No.

ALAN F. TAYLOR, Petitioner,
US.

COMMISSIONER OF TAXATION AND FINANCE, JOHN J.
CONNORS, E. ALLEN SMITH, AND F. COLBY,

Respondents,
and

DAVID H. GUST, Peitioner,
vs.

JOHN J. CONNORS, Respondent,
and

DAVID H. GUST, Petitioner,
vs.

RONALD BRADSHAW, JR., Respondent,
| and

DAVID H. GUST, Petitioner,
vs.

DAVID FIELDS, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
SECOND CIRCUIT COURT OF APPEALS

To the Honorable, the Chief Justice and Associate Justices of the
Supreme Court of the United States:

David H. Gust and Alan F. Taylor, Petitioners herein, pray
that a Writ of Certiorari issue to review the judgements entered
on December 19, 1979 by the United States Court of Appeals for

the Second Circuit affirming the order of the United States
District Court for the Western District of New York dismissing
the Petitioners’ complaints.

OPINION BELOW

The United States District Court for the Western District of
New York dismissed the Petitioners’ complaints finding as fact,
“plaintiff has in effect failed to file a return”. The United States
Court of Appeals for the Second Circuit affirmed without
opinion.

JURISDICTION

Federal jurisdiction was initially invoked under Title 42 USC
1983, and Title 28 USC 1343(3). The United States District Court
for the Western District ordered the complaint dismissed on
May 1, 1979 and the United States Court of Appeals affirmed the
lower court on December 19, 1979 without opinion. The
jurisdiction of this Court is invoked under Title 28 USC 1254.

QUESTION PRESENTED

This Appeal presents the question whether a taxpayer can be
penalized by an administrative agency solely for refusing to
waive his Constitutional Privilege against self-incrimination
regarding requested disclosures that have not been immunized.
Stated another way, may a New York State Tax Examiner
presume fraud and, solely upon that presumption, impose
penalties on the Petitioners for a timely claim of Fifth Amend-
ment Privilege in the absence of any judicial determination of
the validity of that claim? THE PETITIONERS SAY “NO”.

STATEMENT OF THE CASE

Petitioners filed New York State Income returns for 1977
which Respondent Connors was auditing (see addendum pages A-
1 & 2). Petitioners denied requests for the disclosures sought
citing the Fifth Amendment and Garner vs. US, below, as
authorities for such denial (addendum page A-3). Petitioner Gust
reasserted both his Fifth Amendment Privilege and the
authority for that assertion to Respondents Bradshaw and
Fields, alleged Warrant Agents for the New York State
Department of Taxation and Finance, Compliance Bureau. The
penalty was sustained on the presumption of violation of New
York Tax Law §685(i). Petitioner Taylor's attempts to reassert
his claim and authorities were summarily dismissed by
Respondent Smith and a lien was placed against the Petitioner’s

property.

In the District Court the Respondent’s counsel appeared and
contended that Petitioners had failed to file a return and the
penalties were imposed for that failure. The Court dismissed the
complaints before the error of these contentions was exposed.
The Circuit Court Failed to reach any of the questions presented
and affirmed the lower court without opinion.

REASON FOR GRANTING THE WRIT

Petitioners have complied with the provisions of this Court as
handed down in the case of Garner vs. US, 424 US 648 (i976),
pertaining to withholding disclosures concurrently with a timely
claim of the privilege. Respondents have punished Petitioners
administratively with stringent penalties for withholding
testimony that has not been immunized. [see Lefkowitz vs.
Turley, 414 US 70 at 78 (1973); Lefkowitz vs. Cunningham, 431
US 273 (1977); Gardner vs. Broderick, 392 US 273 (1968); Garrity
us. New Jersey, 385 US 493 (1967); Sanitationmen vs. Comm’r of
Sanitation, 392 US 280 (1968); US vs. Sullivan, 274 US 259 (1927);
and Garner vs. US, supra]

POINT I

Respondents attack our accusatorial system of criminal!
justice.

The Fifth Amendment states, in relevant part, “no person ...
shall be compelled in any criminal case to be a witness against
himself”. US Constitution, Amend. V. This simple clause is the
embodiment of centuries of legal evolution and stands today as
one of the fundamental underpinnings of our accusatorial
system of criminal justice. [see Malloy vs. Hogan, 378 US 1 at 7
(1964)]. The privilege is a personal one [Couch vs. US, 409 US 332
at 388 (1973)] and is available to both the accused and witnesses
alike, [Murphy vs. Waterfront Commission, 378 US 52 at 94
(1964), (White, J. concurring), Counselman vs. Hitchcock, 142 US
547 (1892)]. The privilege is more than a mere rule of procedure
and has been held to be a fundamental right, protected against
the states by virtue of the Fourteenth Amendment, (Malloy vs.
Hogan, supra). ‘

In this case Respondents have presumed wrongful intent by
the mere assertion of the privilege. They have made a hollow
mockery out of the privilege itself. They have condemned before
any hearings. They have inflicted arbitrary and coercive
punishment before investigation. They have not only punished
Petitioners for the claim of a lawful right, they have abrogated
one of the fundamental underpinnings of the system under
which justice is sought. The issue is not whether Petitioners can
recover from the injury but whether the Respondents have any
jurisdiction over the claim of privilege or any authority under
the law to impose the injury in the first place.

Although Petitioners have claimed the protection the law

allows they have been punished for doing so. This court has
declared:

The privilege against self-incrimination is fulfilled only
when a person is guaranteed the right to remain silent

unless he chooses to speak in the unfettered exercise of his
own will. Miranda v. State of Arizona, 868. Ct. 1604

While a witness must reply to specific questions and cannot
refuse to provide any information, Respondents have no
authority to impose any penalty for withholding incriminating
disclosures to specific questions. Neither should claimants have
to consider how much it will cost in penalties or sanctions for
claiming the right the law allows. |Sherar vs. Cullen, 41 F2d 945,
(1972) (4th Cir)]

POINT II

The Examiner, Respondent Connors herein, is given NO
POWER to enforce compliance or to impose sanctions for
non-compliance, Reisman vs. Caplin, 375 US 440 at 445 (1964)
emphasis added.

The question of imposing penalties for the assertion of Consti-
tutional Privilege against self-incrimination by the imposition of
sanctions to compel testimony that has not been immunized was
decided by this court as recently as June 13, 1977 in Lefkowitz
vs. Cunningham, 431 US 801. In that case there was a coercive

_ statute that punished one who claimed the privilege. In this case

it is individuals, the Respondents, who deny the Petitioners’
lawful claim of privilege as they might deny a tax deduction or
exemption. Respondents then subject or cause Petitioners to be
subjected to a heavy penalty which must be paid before judicial
review is possible. In every Federal Case cited by the respon-
dents in brief we see, of necessity, the involvement of the
judiciary. But not in this case. Here the Respondents presume to
intrude into the arena of the judiciary; passing on the validity of
a claim of Fifth Amendment Privilege and imposing sanctions in
direct violation of the language of Reisman, supra.

In Garner vs. US, supra, we see the element of timeliness as
essential to maintain the privilege. Garner had made disclosures
and subsequently tried to claim the privilege that had been lost

thereby. Had Garner invoked the privilege to specific questions
on his tax returns, as was done in this case, the tax authorities
could have administratively completed the return or sought
judicial involvement to punish the taxpayer for willfully failing
to file. The identical options are available to the tax authorities
of the State o. New York, however, the Respondents did not
choose to proceed in this lawful manner; but rather converted
Petitioners’ lawful, timely, and valid claim of privilege into a
wrongful act and found Petitioners “guilty” of violating §685(i)
of the State Tax Code. If claiming the privilege could be punished
by imposing a civil penalty as in this case, it would be solely at
the discretion of the opponents of whomever claimed the
privilege as to whether that privilege would be priced out of the
reach of the very citizens whom it was intended to protect.

POINT III

Petitioners have been subjected to a coercive punishment
for claiming the privilege which the law allows.

The privilege against compelled self-incrimination could not
abide any attempt, regardless of its ultimate effectiveness, to
coerce a waiver of the immunity it confers. Sanitation Men vs.
Comm’r of Sanitation, 392 US 280.

In the United States District Court for the Western District of
New York counsel for Warrant Agents David Fields and Ronald
Bradshaw Jr. declared that both names were fictitious (see
addendum pages A-4 & 5). The stated purpose of the deception is,
“to identify particular forms mailed to taxpayers in order to
facilitate handling correspondence when a reply is received”.
Conspicuously absent is any explanation of the official title
“WARRANT AGENT” printed in big bold letters under the
name. The use of this title is not a vain and useless gesture nor
was the impact lost on the Petitioners. It is a critical element of
a coercive scheme to obtain money by means of false pretenses
fabricated to punish Petitioners for refusing to waive the
protection the law allows.

7

Paragraph 3 (addendum page A-5) presents the manner in
which responsibility is evaded by stating that personal service
was not effected. However, the matter of personal service was
not an objection for only nonexistent persons. An attorney, Max
Kuperman, accepts the Complaint and Summons from the
Federal Marshall allowing the matter of lack of personal service
to be raised with any complaint of alleged wrongful conduct.

POINT IV

The state misled the district court by misstating the reason
for the penalty.

In his decision Judge Burke stated, “Thereafter, on August 24,
1978, plaintiff was assessed a $950.00 penalty pursuant to §685(i)
of the Tax Law for failure to file a return (emphasis added).

This argument was advanced by the respondents in their
memorandum of law in support of the motion to dismiss. The
Notice and Demand for Payment for the assessments against the
Petitioners clearly states “iat the reason for the amounts due is
“Penalty under §685(i) of the tax law for failure to submit in-
formation requested in our previous correspondence. Copy of our

‘letter is enclosed.” (see Addendum page A-6). The letter in

question requests additional information to complete an audit of
petitioners’ tax returns for the year in question. The penalty,
therefore, is administratively imposed for the claim and exercise
of the Fifth Amendment Privilege.

POINT V

Court below improperly dismissed the complaint without
applying the standards set forth in Haines vs. Kerner, 404 US
519 at 520.

This Court in Haines vs. Kerner, supra, has set forth a
standard for this type of dismissal.

We cannot say with assurance that under the allegations
of the Pro Se complaint, which we hold to less stringent
standards than formal pleading drafted by lawyers, it
appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief (citations omitted).

Accordingly although we intimate no view whatever on
the merits of Petitioner’s allegations, we conclude that he
is entitled to an opportunity to offer proof. Supra at 520,
521

The Petitioners herein submit that the Courts below erred in not
taking this into account in their decisions.

CONCLUSION

It is not the practice of the Federal Tax authorities to attempt
to apply this type of civil penalty to taxpayers who have in-
terposed claims of Constitutional Privilege, therefore Petitioners
believe that this is a case of first impression before this Court.

The Rights of citizens are fragile things which must be most
carefully protected. Fundamental to this protection is the
separation of the functions of our tripartite government.
Whenever any branch of that government infringes the area of
another branch and is allowed to continue that infringement our
very system is in jeopardy. The most dangerous form of that
infringement is when the Administrative branch encroaches on
the territory of the Judicial branch. When administrative clerks,
or Senior Audit Examiners, may act as “Judge, Jury, and

Executioner” the very lives of the citizens are threatened. It is
this threat to our system of jurisprudence which, Petitioners
submit, requires the intervention of this Court.

For these reasons Petitioners implore this Court to grant them
relief.

Dated March 10, 1980

Respectfully submitted,
ALAN F. TAYLOR DAVID H. GUST
Petitioner, Pro Se Petitioner, Pro Se
242 S. Union Street 399 Parma Center Road
Spencerport, New York 14559 Hilton, New York 14468
(716) 352-0239 (716) 392-9369

ADDENDUM

A-1

ADDENDUM 1 — Letter of John J. Connors
To David H. Gust

New York State Department of

TAXATION and FINANCE

INCOME TAX BUREAU

STATE CAMPUS, ALBANY, NEW YORK 12227

Telephone (518) 457-5533 : AG-2-CNA
File #7-49027040

Tax Year 1977
David H. Gust MAY 26, 1978

399 Parma Ctr. Rd.
Hilton, N.Y. 14468

This refers to the audit of your 1977 New York State income tax
return. In order that we may complete the audit of your return,
it will be necessary for you to submit additional information.

Please submit a complete list of all income earned for 1977. Also,
please submit the New York State copy of any wage and tax
statements you received for 1977.

A reply is requested 30 days, referring to the division and file
number shown above.

ls) JOHN J. CONNORS
John J. Connors
Associate Income Tax Examiner
Audit Group 2

TJC/jtb

A-2
ADDENDUM 2 — Letter of John J. Connors
To Alan F. Taylor
New York State Department of
TAXATION and FINANCE
INCOME TAX BUREAU
STATE CAMPUS, ALBANY, NEW YORK 12227
Telephone (518) 457-5533 AG-2-CNA
File #7-49027054
Tax Year 1977
Alan F. Taylor MAY 26, 1978

242 S. Union St.
Spencerport, N.Y. 14559

This refers to the audit of your 1977 New York State income tax
return. In order that we may complete the audit of your return,
it will be necessary for you to submit additional information.

Please submit a complete list of all income earned during 1977.
In lieu of a list, you may submit a copy of your 1977 Federal
income tax return. Also, please submit copies of any wage and
tax statements you received during 1977.

A reply is requested within 30 days, referring to the division and
file number shown above.

ls) JOHN J. CONNORS
John J. Connors
Associate Income Tax Examiner
Audit Group 2

TJCijtb

A-3

ADDENDUM 3 — Letter of David H. Gust
To John J. Connors

399 Parma Center Rd.
Hilton New York 14468
May 30, 1978
Mr. John J. Connors
Associate Income Tax Examiner
Audit Group 2

Dear Mr. Connors,

Referring to AG-2-CNA, file #7-49027042, I should like to submit
the necessary information within the provisions of the law as it
relates to the Fifth Amendment of the United States Con-
stitution.

In Garner -v- United States, 74-100, Justice Powell, writing the
unanimous opinion of the Court stated:

“If the taxpayer desires the protection of the privilege he
must claim it instead of making disclosures. Any other
rule would deprive the government of its choice between
compelling the evidence from the claimant in exchange
for immunity, and avoiding the burdens of immunization
and obtaining the evidence elsewhere.”

The privilege I claim is waived when I answer the questions on
the return. That is the clear unanimous holding of Garner.

Sincerely,
ls) David H. Gust

A-4

ADDENDUM 4 — Letter of Attorney General
To Judge Burke

STATEOF NEW YORK
DEPARTMENT OF LAW
RoBERT ABRAMS ALBANY, N. Y. 12224

ATTORNEY GENERAL
Telephone: (518) 474-5259
February 16, 1979

Re: GUST v. CONNORS
TAYLOR v. STATE TAX COMMISSIONER,

etal. |
Motion Term, February 12, 1979

Honorable Harold P. Burke
United States District Judge
272 United States Court House
100 State Street

Rochester, New York 14614

Dear Judge Burke:

At oral argument, I made reference to a recent decision by the
United States Tax Court, Allen v. Commissioner, which is en-
closed. Although the decision is not directly on point, it may be
informative.

For the record, I repeat my objections to the additional actions
commenced by Mr. Gust:

David H. Gust v. Ronald Bradshaw, Jr.
David H. Gust v. David Fields

These defendants were not personally served, nor could they be.
These names are fictitious and are used by the Tax Compliance
Bureau in its correspondence in order to identify the particular
form mailed and facilitate handling when a reply is received.

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—

A-5

ADDENDUM 4 — Letter of Attorney General
To Judge Burke

To: Honorable Harold P. Burke February 16, 1979

-

It is respectfully requested that the complaints in each of the
actions be dismissed because the Fifth Amendment privilege is
improperly exercised here where there is no criminal in-
vestigation ensuing, merely the duty and responsibility of the
Tax Commission to collect income taxes.

Respectfully yours,

ROBERT ABRAMS
Attorney General

By

ROBERT T. MULI
Assistant Attorney
General

Enc.
ce: Mr. David H. Gust
Mr. Alan F. Taylor

A-6

ADDENDUM 5 —Notice and Demand for

Payment of Income Tax Due

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1849%3A1. Public record. Not legal advice.