Appendix — Gust v. Commissioner of Taxation & Finance

Bupreme Gourt, Uy |

FILED

MAR 34 (980.

In The [_Rroee e.i y GLER

Supreme Court of the United States

October Term, 1979

iis 79-1437

ALAN F. TAYLOR, Petitioner,

vs.

COMMISSIONER OF TAXATION AND FINANCE, JOHN J.

CONNORS, E. ALLEN SMITH, AND F. COLBY,

Respondents,

; and

DAVID H. GUST, Petitioner,

vs.

JOHN J. CONNORS, Respondent,

and

DAVID H. GUST, Petitioner,

vs.

RONALD BRADSHAW, JR.., Respondent,

and

DAVID H. GUST, Petitioner,

vs.

DAVID FIELDS, Respondent.

APPENDIX

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 5854 Spauiding Law Printing

Rochester, New York ( ) Syracuse, New York

- — ree

TABLE OF CONTENTS

Page

Order of Judge Burke Dismissing Complaint (Taylor vs.

Commissioner of Taxation etal.)................. A-l

Order of Judge Burke Dismissing Complaint (Gust vs.

a Pee ee es yey A-4

Order of Judge Burke Dismissing Complaint (Gust vs

3 BESEREE ENS Pore re eee ree ree A-7

Order of Judge Burke Dismissing Complaint (Gust vs.

I sl Gy a Te la te oa A-9

Order of United States Court of Appeals Second Circuit

Affirming District Court Decision (Gust against

I ovo) ahs a sc ae Kha ae ER eke os A-11

Order of United States Court of Appeals Second Circuit

Affirming District Court Decision (Gust against Fields)

fois Ge ee er Aer er at red Mo ME A-13

Order of United States Court of Appeals Second Circuit

Affirming District Court Decision (Gust against

RECT ARR eee ree aie ng Ura eo aN A-15

Order of United States Court of Appeals Second Circuit

Affirming District Court Decision (Taylor against

Commissioner of Taxation etal.)................. A-17

A-1

ORDER OF JUDGE BURKE DISMISSING COMPLAINT

(Taylor vs. Commissioner of Taxation et al.)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ALAN F. TAYLOR,

Plaintiff

- VS -

COMMISSIONER OF TAXATION AND FINANCE, JOHN J.

CONNORS, E. ALLEN SMITH, and F. COLBY,

Defendants.

| CIVIL 78-753

Plaintiff in person

242 South Union Street

Spencerport, N.Y. 14559

Donald P. Hirshorn and Robert T. Mulig

Assistant Attorneys General of New York

The Capitol

Albany, N.Y. 12224

Attorneys for defendants

| The complaint herein was filed November 14, 1978. It seeks

injunctive and declaratory relief and damages in the amount of

$96,703.00.

| By notice of motion with supporting papers filed December 21,

1978 the defendants move to dismiss the complaint on the

ground that the complaint fails to state a cause of action on

which relief can be granted under 42 U.S.C. Section 1983. The

matter came on for argument on February 12, 1979 and was

submitted for a decision.

Plaintiff,.a New York State resident, has filed his New York

income tax form upon which form plaintiff has asserted Fifth

ee _

~~.

A-2

Order of Judge Burke Dismissing Complaint

(Taylor vs. Commissioner of Taxation et al.)

Amendment privilege in lieu of supplying income information. A

subsequent request by defendant Connors to supply income

information was refused by plaintiff who again asserted Fifth

Amendment privilege. Thereafter, on August 24, 1978, plaintiff

was assessed a $950.00 penalty pursuant to Section 685(i) of the

Tax Law for failure to file a return. By letter dated November 3,

1978 plaintiff requested a hearing which was denied. Thereafter

he commenced this action.

John J. Connors has never been personally served.

The plaintiff has furnished no information to the State Tax

Commission regarding his 1977 personal income. No claim is

made by plaintiff that he did not have income nor does plaintiff

dispute the fact that he is a New York State resident.

For the year 1977 the plaintiff filed a copy of the 1977 New

York State tax return form, which contained the plaintiff's

name, address, county of residence, social security number,

occupation, signature and date. Plaintiff claimed the Fifth

Amendment privilege against self-incrimination for the

remainder of the tax return form. The filing of IRS form 1040

containing, as was done by the petitioner here, only the tax-

payers name, social security number and a blanket declaration

regarding his Fifth Amendment privilege does not constitute the

filing of a tax return. U.S. vs. Sullivan, 274 U. S. 259 (1927).

Plaintiff relies upon Garner vs. U. S., 424 U.S. 648 (1976) in his

claim of Fifth Amendment privilege. Garner does not change

well established law as set forth in U. S. vs. Sullivan, 274 U.S.

259, holding that a citizen must file a tax return.

The plaintiff has made no showing of any reasonable ground

for his refusal to file a return or answer any of the questions on

the return other than his name and address. Although given a

second opportunity to supply income figures for 1977, plaintiff

refused to do so without explanation other than assertion of

A-3

Order of Judge Burke Dismissing Complaint

(Tayior vs. Commissioner of Taxation et al.)

Fifth Amendment privilege. The State Tax Department assessed

against the plaintiff a $950.00 penalty pursuant to Section 685(i)

of the State Tax Law. This action was proper based on the law

and the facts.

Due process is safeguarded because a taxpayer has ad-

ministrative remedies by which review may be had, Tax Law

§689. Section 689(e) places the burden of proof of fraud with

intent to evade tax upon the tax commission. Judicial review of

the tax commission’s determination is also available, Tax Law

§690.

Under Section 689, a taxpayer may petition for redetermina-

tion of a deficiency or for a refund. The assessment demanded of

plaintiff constituted a penalty for having failed to file a proper

income tax return and cannot be deemed a deficiency

assessment. Plaintiffs request for a hearing was disallowed

because the proper procedure for plaintiff to follow was to pay

the $950.00 penalty pursuant to the notice and demand dated

August 24, 1978, and thereafter file a claim for a refund with the

tax commission. If the refund claim is denied, the taxpayer may

then file a petition for a hearing under Section 689.

Plaintiff has not alleged a federally protected right which has

been violated by defendant or any state tax official. The Fifth

Amendment privilege does not and should not extend to cases

such as this where plaintiff has in effect failed to file a return.

Due process is adequately safeguarded by the procedures set

forth in the State Tax Law.

For the above reasons it is hereby

ORDERED that the complaint is dismissed.

ls) HAROLD P. BURKE

HAROLD P. BURKE

United States District Judge

March 20, 1979. :

A-4

ORDER OF JUDGE BURKE DISMISSING COMPLAINT

(Gust vs. Connors)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

DAVID H. GUST,

Plaintiff

- Vs -

JOHN J. CONNORS,

Defendant

CIVIL 78-701

Plaintiff in person

399 Parma Center Road

Hilton, N.Y. 14468

Donald P. Hirshorn and Robert T. Mullig

Assistant Attorneys General of New York

The Capitol

Albany, N.Y. 12224

Attorney for defendant

By notice of motion with supporting papers filed December 20,

1978 defendant moves for an order pursuant to Rule 12(b) of the

Federal Rule of Civil Procedure to dismiss the action on the

grounds (1) that this court lacks jurisdiction over the person of

the defendant, and (2) the complaint fails to state a cause of

action upon which relief can be granted.

Plaintiff, a New York State taxpayer, submitted a New York

tax form upon which plaintiff asserted Fifth Amendment

privilege and failed to insert answers to the questions contained

therein. On May 26, 1978, the New York State Department of

Taxation and Finance, by John J. Connors, requested a complete

. list of all income earned for 1977. This information was not

supplied.

A-5

Order of Judge Burke Dismissing Complaint

(Gust vs. Connors)

On July 20, 1978, plaintiff was assessed a penalty of $950.00

pursuant to the provisions of State Tax Law, §685(i). Thereafter,

plaintiff commenced this action for alleged violation of civil

rights in which he seeks damages in the amount of One Million

Six Hundred Thousand dollars.

Defendant John J. Connors has never been personally served.

The papers were served on a secretary to the Commissioner at

the Department of Taxation and Finance, a person who is clearly

unauthorized to accept service on behalf of the defendant.

Even assuming the service was proper, the complaint should

nevertheless be dismissed. The plaintiff furnished no in-

formation to the State Tax Commission regarding his 1977

personal income. No claim is made by plaintiff that he did not

have income nor does he dispute the fact that he is a New York

State resident.

For the year 1977 the plaintiff filed a copy of the 1977 New

York State Tax return form, which contained the plaintiff's

name, address, county of residency, signature and date. He

claimed the Fifth Amendment privilege against self in-

crimination for the remainder of the tax return form. The filing

of IRS form 1040 containing, as was done by the plaintiff here,

only the taxpayer’s name, social security number and a blanket

declaration regarding his Fifth Amendment privilege does not

constitute the filing of tax returns. U. S. vs. Sullivan, 274 U.S.

259 (1927).

Plaintiff relies upon Garner vs. U. S., 424 U.S. 648 (1976), in his

claim of Fifth Amendment privileges. Garner does not change

well established law as set forth in U. S. vs. Sullivan, 274 U.S.

259, that a citizen must file a tax return.

Plaintiff has made no showing of any reasonable ground for

his refusal to file a return or answer any of the questions on the

return other than name and address. Although given a second

A-6

Order of Judge Burke Dismissing Complaint

(Gust vs. Connors)

opportunity to supply income figures for 1977, plaintiff refused

to do so without explanation other than assertion of Fifth

Amendment privileges. The State Tax Department assessed

against plaintiff a $950.00 penalty pursuant to Section 685(i) of

the State Tax Law. This action was proper based upon the law

and the facts.

Due process is safeguarded because a taxpayer has ad-

ministrative remedies by which review may be had, Tax Law

section 689. Section 68%e) places the burden or proof of fraud

with intent to evade tax upon the tax commission. Judicial

review of the tax commission’s determination is also available,

Tax Law Section 690.

Plaintiff has not alleged a federally protected right which has

been violated by defendant or any other state tax official. The

Fifth Amendment privilege does not and should not extend to

cases such as this where plaintiff has in effect failed to file a

return.

For the above reasons it is hereby

ORDERED that the complaint is dismissed.

ls) HAROLD P. BURKE

HAROLD P. BURKE

United States District Court

March 16, 1979.

A-T

ORDER OF JUDGE BURKE DISMISSING COMPLAINT

(Gust vs. Fields)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

DAVID H. GUST,

Plaintiff

- U8 -

DAVID FIELDS,

Defendant

CIVIL 79-16

Plaintiff in person

399 Parma Center Road

Hilton, N.Y. 14468

Robert Abrams

Attorney General of New York

The Capitol

Albany, N.Y.

Attorney for defendant

By notice of motion filed February 26, 1979 plaintiff moves for

summary judgment in his favor. The motion was submitted for

determination on March 12, 1979. On due consideration it is

hereby

ORDERED that the motion is denied.

On the court’s own motion the complaint is dismissed. The

plaintiff furnished no information to the State Tax Commission

regarding his personal income. The filing of IRS Form 1040

containing, as was done by the plaintiff here, only the taxpayer’s

name, social security number and a blanket declaration

A8

Order of Judge Burke Dismissing Complaint

(Gust vs. Fields)

regarding his Fifth Amendment privilege does not constitute the

filing of tax returns. U. S. vs. Sullivan, 274 U.S. 259 (1927).

Plaintiff has not alleged a federally protected right which has

been violated by defendant or any other state tax official. The

Fifth Amendment privilege does not extend to cases such as this

where plaintiff has in effect failed to file a return.

ALL OF THE ABOVE IS SO ORDERED.

ls) HAROLD P. BURKE

HAROLD P. BURKE

United States District Judge

May 1, 1979.

A-9

ORDER OF JUDGE BURKE DISMISSING COMPLAINT

(Gust vs. Bradshaw, Jr.)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

DAVID H. GUST,

Plaintiff

-US-

RONALD BRADSHAW, JR..,

Defendant

CIVIL 78-826

Plaintiff in person

399 Parma Center Road

Hilton, N.Y. 14468

Robert Abrams

Attorney General of New York

The Capitol

_ Albany, N.Y.

Attorney for defendant

(Robert J. Mullig, Assistant Attorney General, of Counsel)

By notice of motion filed February 26, 1979 plaintiff moves for

summary judgment in his favor. The motion was submitted for

determination on March 12, 1979. On due consideration it is

hereby

ORDERED that the motion is denied.

On the court’s own motion the complaint is dismissed. The

plaintiff furnished no information to the State Tax Commission

regarding his personal income. The filing of IRS Form 1040

containing, as was done by the plaintiff here, only the taxpayer’s

name, social security number and a blanket declaration

A-10

Order of Judge Burke Dismissing Complaint

(Gust vs. Bradshaw, Jr.)

regarding his Fifth Amendment privilege does not constitute the

filing of tax returns. U.S. vs. Sullivan, 274 U.S. 259 (1927).

Plaintiff has not alleged a federally protected right which has

been violated by defendant or any other state tax official. The

Fifth Amendment privilege does not extend to cases such as this

where plaintiff has in effect failed to file a return.

ALL OF THE ABOVE IS SO ORDERED.

ls) HAROLD P. BURKE

HAROLD P. BURKE

United States District Judge

April 27, 1979.

A-11

ORDER OF UNITED STATES COURT OF APPEALS

SECOND CIRCUIT AFFIRMING

DISTRICT COURT DECISION

(Gust against Bradshaw)

UNITED STATES COURT OF APPEALS

FOR THE .

SECOND CIRCUIT

At a stated Term of the United States Court of Appeals for the

Second Circuit, held at the United States Courthouse in the City

of New York, on the 14th day of December one thousand nine

hundred and seventy-nine.

Present:

Hon. William H. Mulligan

Hon. James L. Oakes

Hon. Murray I. Gurfein

Circuit Judges,

DAVID H. GUST,

Appellant,

-against-

RONALD BRADSHAW, JR.,

Appellee.

79-7390

Appeal from the United States District Court for the Western

District of New York

This cause came on to be heard on the transcript of record from

the United States District Court for the Western District of New

York, and was argued by counsel.

A-12

Order of United States Court of Appeals

Second Cireuit Affirming District Court Decision

(Gust against Bradshaw)

ON CONSIDERATION WHEREOPF, it is now hereby ordered,

adjudged, and decreed that the order of said District Court be

and it hereby is affirmed on the opinion below of the Hon.

Harold P. Burke, Civ. 78-826 (W.D.N.Y. May 1, 1979).

ls) WILLIAM H. MULLIGAN

WILLIAM H. MULLIGAN

ls) JAMES L. OAKES

JAMES L. OAKES

ls) MURRAY I. GURFEIN

MURRAY I. GURFEIN

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

FILED

% DEC 19 1979 *

A. DANIEL FUSARO, CLERK

A-13

ORDER OF UNITED STATES COURT OF APPEALS

SECOND CIRCUIT AFFIRMING

DISTRICT COURT DECISION

(Gust against Fields)

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States Court of Appeals for the

Second Circuit, held at the United States Courthouse in the City

of New York, on the 14th day of December one thousand nine

hundred and seventy-nine.

Present:

Hon. William H. Mulligan

Hon. James L. Oakes

Hon. Murray I. Gurfein

Circuit Judges,

DAVID H. GUST,

Appellant,

-against-

DAVID FIELDS,

Appellee.

79-7373

Appeal from the United States District Court for the Western

District of New York

This cause came on to be heard on the transcript of record from

the United States District Court for the Western District of New

York, and was argued by counsel.

A-14

Order of United States Court of Appeals

Second Circuit Affirming District Court Decision

(Gust against Fields)

ON CONSIDERATION WHEREOPF, it is now hereby ordered,

adjudged, and decreed that the order of said District Court be

and it hereby is affirmed on the opinion below of the Hon.

Harold P. Burke, Civ. 79-16 (W.D.N.Y. Apr. 27, 1979).

ls) WILLIAM H. MULLIGAN

WILLIAM H. MULLIGAN

ls) JAMES L. OAKES

JAMES L. OAKES

ls) MURRAY I. GURFEIN

MURRAY I. GURFEIN

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

FILED

% DEC 19 1979 x

A. DANIEL FUSARO, CLERK

——— amen

A-15

ORDER OF UNITED STATES COURT OF APPEALS

SECOND CIRCUIT AFFIRMING

DISTRICT COURT DECISION

(Gust against Connors)

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States Court of Appeals for the

Second Circuit, held at the United States Courthouse in the City

of New York, on the 14th day of December one thousand nine

hundred and seventy-nine.

Present:

Hon. William H. Mulligan

Hon. James L. Oakes

Hon. Murray I. Gurfein

Circuit Judges,

DAVID H. GUST,

Appellant,

-against-

JOHN J. CONNORS,

Appellee.

79-7279

Appeal from the United States District Court for the Western

District of New York

This cause came on to be heard on the transcript of record from

the United States District Court for the Western District of New .

York, and was argued by counsel.

A-16

Order of United States Court of Appeals

Second Circuit Affirming District Court Decision

(Gust against Connors)

ON CONSIDERATION WHEREOPF, it is now hereby ordered,

adjudged, and decreed that the order of said District Court be

and it hereby is affirmed on the opinion below of the Hon.

Harold P. Burke, Civ. 78-701 (W.D.N.Y. Mar. 16, 1979).

ls) WILLIAM H. MULLIGAN

WILLIAM H. MULLIGAN

ls) JAMES L. OAKES

JAMES L. OAKES

ls) MURRAY I. GURFEIN

MURRAY I. GURFEIN

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

FILED

w DEC 19 1979 %

A. DANIEL FUSARO, CLERK

eee ar.

- ame aes = ao

a

‘ a ren ~Armranasaias

A-17

ORDER OF UNITED STATES COURT OF APPEALS

SECOND CIRCUIT AFFIRMING

DISTRICT COURT DECISION

(Taylor against Commissioner of Taxation et al.)

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States Court of Appeals for the

Second Circuit, held at the United States Courthouse in the City

of New York, on the 14th day of December one thousand nine

hundred and seventy-nine.

Present:

Hon. William H. Mulligan

Hon. James L. Oakes

Hon. Murray I. Gurfein

Circuit Judges,

ALAN F. TAYLOR,

Appellant,

-against-

COMMISSIONER OF TAXATION AND FINANCE, JOHN J.

CONNORS, E. ALLEN SMITH, AND F. COLBY, ;

Appellees.

79-7353

Appeal from the United States District Court for the

Western District of New York

This‘cause came on to be heard on the transcript of record from

the United States District Court for the Western District of New

York, and was argued by counsel.

A-18

Order of United States Court of Appeals

Second Circuit Affirming District Court Decision

(Taylor against Commissioner of Taxation et al.)

ON CONSIDERATION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the order of said District Court be

and it hereby is affirmed on the opinion below of the Hon.

Harold P. Burke, Civ. 78-753 (W.D.N.Y. Mar. 20, 1979).

ls) WILLIAM H. MULLIGAN

WILLIAM H. MULLIGAN

ls) JAMES L. OAKES

JAMES L. OAKES

ls) MURRAY I. GURFEIN

MURRAY I. GURFEIN

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

FILED

% DEC 19 1979 x

A. DANIEL FUSARO, CLERK