Petition — Rizzo v. Davis

Supreme Court, U.S,

FILED

DEC 12 1980

80-1041

MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

October Term 1980

No.

VIRGIL R. RIZZO, Petitioner

versus

THOMAS L. DAVIS, District Director

Internal Revenue Service,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Virgil R. Rizzo

pro se

P.O. Box 524

Warrendale, PA

15086

QUESTION PRESENTED

Whether the Petitioner may be denied due

process and access to the courts to contest a

tax deficiency determination because a "90 Day

Notice", not received by him, was mailed to an

address other than his certified “last Known

address" as required by 26 U.S.C. 6212.

QUESTION PRESENTED

Whether the Petitioner may be denied due

process and access to the courts to contest a

tax deficiency determination because a "90 Day

Notice", not received by him, was mailed to an

address other than his certified "last known

address" as required by 26 U.S.C. 6212.

TABLE OF CONTENTS

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Constitutional Provision Involved..........eeeeeeees

PE HURON a vib Cd KE Sabb 004 08 600s Mahe en esas een

Statement of the Case............. bias cGe'se veaedeaans

Reasons for Granting the Writ.......ccceccvscccescces

I. In holding that the Petitioner's "last

known address” is that as found on a

power of attorney form instead of that

shown on his tax return, the Third

Circuit rendered a decision in conflict

with other Courts of Appeal and the Tax

II. In holding that the Petitioner may not

petition the Tax Court, or any court,

to seek redetermination of a purported

tax deficiency, the Third Circuit has

departed from the accepted course of

judicial proceedings and applicable

decisions of the Supreme Court violating

Petitioner's due process and equal pro-

tection rights as guaranteed by the Fifth

PG s 6 sca dd nsec cdbe see sn edeane es cpeeawd war

RS i a dns LEN oe ewe KN OEE ED Dew wae ee ERD eobees

Appendix.

CASES CITED

Alta Sierra Vista, Inc. v. Commissioner,

62 T.C. 367 (1974) aff'd 538 F.2d 334

TM FS GPRS ir A Ala at ae 9

Boddie v. Connecticut, 401 U.S. 371 (1971)........ 11,12

Butler v. District Director of Internal

Revenue, 409 F.Supp. 853 (S.D. Tex. 1975)........... 9

Commissioner v. Shapiro, 424 U.S. 614

CCE ss ei nana Wied 4045 Kebetaetabececbeeenes 11

Delman v. Commissioner, 384 F.2d. 929 (1967),

cert. denied, 390 U.S. 952 (1968)......cccecccees 10,11

Douglas v. California, 372 U.S. 353 (1963)........... 12

Flora v. United States, 357 U.S. 63 (1958)

aff'd on rehearing 362 U.S. 145 (1960)............ 5,11

Green v. United States, 437 F.Supp. 334

PC EME TOPPEAA scale Wakapbeandcs besdeasevennecea 9

Harper v. Virginia Board of Elections, 383 U.S.

NES SOLS Gus cu cG an wad SAHA d RAS oben nes odeweee 12

Kennedy v. United States, 403 F.Supp. 619

(W.D. Mich. 1975) aff'd 556 F.2d 581

re Ce a bikn ei he whens bs edanwe es eae ent 8

Laing v. United States, 423 U.S. 176 (1975)........ 11,12

Lata ws. Peatek. 416. U.S. FOS (US74E) cc cceccvcssecens 12

Luhring v. Glotzbach, 304 F.2d. 556 (4th Cir. 1962)...9

McCormick, v. Commissioner, 55 T.C. 138 (1970)........ 9

Most v. Commissioner, 31 T.C.M. 1062 (1972)........... 9

Phillips v. Commissioner, 283 U.S. 589 (1931)........ 1]

Reddock v. Commissioner, 72 T.C. 21 (1979)............ 8

San Antonio School District v. Rodriquez,

ee CCE a ip idk vee CUdNGbbks che Rabeneceeens 12

Timmons v. Commissioner, 37 T.C.M. 1134 (1978)........ g

ij

Wagner v. United States, 473 F.Supp. 276 (E.D.

Pi ida vib/uvsdennandice Weiss boarachesesese 9,10

UNITED STATES CONSTITUTION CITED

Sr EE sn cu ea eeeteeeh Aeebeé emcees aot

a a i i ee 2,3,5,8,9

INTERNAL REVENUE SERVICE MANUAL Sec. 4462.1(3)....... 7

iii

SUPREME COURT OF THE UNITED STATES

October Term 1980

No.

VIRGIL R. RIZZO, Petitioner

versus

THOMAS L. DAVIS, District Director

Internal Revenue Service,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner prays that a writ of certiorari

issue to review the judgment of the United States

Court of Appeals for the Third Circuit, entered on

July 25, 1980, rehearing denied September 22, 1980,

affirming the decision of the District Court for

the Western District of Pennsylvania that the

Petitioner may not under the Equal Protection Clause

of the Fifth Amendment to the United States Constitu-

tion, have access to the courts.

lbs

OPINION BELOW

There was no opinion rendered in the Court of

Appeals; the Judgment of the Court of Appeals

issued on July 25, 1980, is set out in Appendix A,

infra. The Order and Memorandum of the District

Court are unpublished and are set out in Appendix B,

infra.

JURISDICTION

The jurisdiction of this Court is invoked

under 28 U.S.C. 1254.

QUESTION PRESENTED

Whether the Petitioner may be denied due

process and access to the courts to contest a tax

deficiency determination because a "90 Day Notice",

not received by him, was mailed to an address other

than his certified "last known address" as required

by 26 U.S.C. 6212.

CONSTITUTIONAL PROVISION INVOLVED

Amendment V

"No person shall....be deprived of life,

liberty or property, without due process of law...."

STATUTE INVOLVED

The Statute involved is 26 U.S.C. 6212(b).

United States Code, Title 26:

Section 6212 NOTICE OF DEFICIENCY.

(b) Address For Notice of Deficiency -

(1) Income and Gift Taxes and Taxes

Imposed by Chapter 42--In the absence of notice to

the Secretary under section 6903 of the existence

of a fiduciary relationship, notice of a deficiency

in respect of a tax imposed by subtitie A, chapter 12,

chapter 42, chapter 43, or chapter 44 if mailed to

the taxpayer at his last known address, shall be

sufficient....

a

STATEMENT OF THE CASE

This petition arises out of the judgment of the

Third Circuit Court of Appeals which found that the

Internal Revenue Service may ignore its own rules

and send a statutory notice of tax deficiency to an

address obtained from a power of attorney, instead

of that listed on the Petitioner's tax return,

denying the Petitioner notice and due process to

contest the deficiency in any court. Had this case

been brought before the Fourth, Sixth, or Ninth

Circuits, Petitioner's due process rights would not

have been so denigrated.

The IRS sent two "90 Day Notices of Deficiency"

for assessed taxes of $26,707.93 plus penalties and

interest to a Florida address obtained from a power

of attorney form executed by the Petitioner before

his return to Pennsylvania from Florida. !

1. The power of attorney was a standard IRS Form 2848

which requested that copies of notices be sent to the

attorney listed. It neither directed a change of

address nor was it intended by the Petitioner to be

a change of address.

The notices were never received by the Petitioner and

were returned unclaimed to the Agent. The Petitioner

was then precluded from seeking redetermination in

the Tax Court.

Subsequently, the IRS filed a "Federal Tax Lien"

for the full amount of tax assessed and sent a copy

to the Petitioner in Pennsylvania. This was the first

notice that the Taxpayer had of any deficiency. Because

the lien is so powerful, restrictive, and compounding,

the Petitioner's dilemma is perpetual.

Section 6212(b)(1) of the Internal Revenue Code

of 1954 and due process require that a notice of defi-

ciency be mailed to a taxpayer's "last known address"

so that he may contest the alleged deficiency in Tax

Court instead of being required to pay the full amount

due before filing for a refund. Flora v. United States,

357 U.S. 63 (1958) aff'd on rehearing 362 U.S. 145 (1960).

Petitioner's address since 1970 was unquestionably

listed by the IRS as being in Warrendale, Pennsylvania.

Prior to the hearing before the District Court, the

Petitioner received answers to questionnaires he had

2. Copies of the notices were also not received by the

holder of the power of attorney.

~5-

sent to the IRS Service Centers. The replies

affirmed that his address was, continuously from 1970

to present, Warrendale, Pennsylvania, (App-C.1-2),

the address which he had listed on his tax returns.

Petitioner continued to maintain his home in Pennsyl-

vania because of interruption for military service,

education, and change in place of employment.

In the statutory notice of deficiency for the

year ended December 31, 1973, the amount of deficiency

arrived at was from disallowance of investment losses

because of failure to explain sources of funds.

The Internal Revenue Service never attempted to con-

tact the Petitioner or his representative regarding

an audit for the purported deficiency year and arbitrar-

ily disallowed the Petitioner's return as filed with-

out such audit.°

The Revenue Agent never attempted

to ascertain the Petitioner's correct address despite

the Commissioner's own field manual which instructs

agents where there is a question as to the proper mail-

ing address, duplicate original notices should be sent.

3. The Florida Agent from the beginning had no juris-

diction over the Petitioner's return when such return

was filed in Pittsburgh, the sole address as listed

and as certified by the IRS.

i.

INTERNAL REVENUE SERVICE MANUAL, Section 4462.1(3). °

Notice was not sent to the sole address the agency

had on file for the Petitioner; the IRS Agent did not

attempt to send the 90 day notice to the correct

address when he was put on notice that it was not

received after it was returned unclaimed. In failing

to abide by this duty, the Agent precluded the

Petitioner from showing that the Commissioner acted

arbitrarily in making his determination. Because the

deficiency is so large, the Petitioner is precluded

from paying the full amount and seeking relief by a

refund suit. Due to Petitioner's lack of financial

means, which precludes him from seeking judicial

determination of his correct tax liability, he

petitions this Court for writ of certiorari to

determine the the standard used to determine his

“last known address" was not properly applied and

is inadequate since it deprives him of due process

and equal protection of the law as guaranteed by the

Fifth Amendment.

REASONS FOR GRANTING THE WRIT

I.

This Court should grant certiorari to resolve

the conflict in the Circuits and to protect the rights

of the Petitioner. The Conflict beween the Third

Circuit and other Courts of Appeal and the Tax Court,

exists as to whether an address on a power of attorney

form which directs that only copies of notices and

correspondence be sent to the holder of the power,

constitutes the "last known address" of the Petitioner

instead of the address as shown on his tax return for

the year in question.

In conflict with the Third Circuit the Tax Court

has held that a power of attorney form that requests

only “copies" of notices and correspondence is insuffi-

cient to constitute a "last known address" within the

meaning of 26 U.S.C. 6212(b)(1). Reddock v. Commis-

sioner, 72 T.C. 21 (1979). That court, as well as

other courts, holds that the address listed on the

taxpayer's form 1040 for the year involved is the

proper “last known address", contrary to the opinion

of the trial court in the instant case and the Third

Circuit by affirmation. See Kennedy v. United States,

ee

403 F. Supp 619 (W.D. Mich. 1975) aff'd, 556 F.2d

581 (6th Cir. 1977); Alta Sierra Vista, Inc. v.

Commissioner, 62 T.C. 367 (1974) aff'd, 538 F.2d 334

(9th Cir. 1976); Luhring v. Glotzbach, 304 F.2d

556 (4th Cir. 1962); Wagner v. United States, 473

F. Supp. 276 (E.D. Pa. 1979); Green v. United States,

437 F.Supp. 334.(N.D. Okla. 1977); Butler v. District

Director of Internal Revenue, 409 F.Supp. 853 (S.D.

Tex. 1975); Timmons v. Commissioner, 37 T.C.M. 1134

(1978); Most v. Commissioner, 31 T.C.M. 1062 (1972);

McCormick v. Commissioner, 55 T.C. 138 (1970).

The construction and application as to what

constitutes a "last known address" within the meaning

of 26 U.S.C. 6212 (b)(1) as enacted by Congress is

troublesome and confusing raising constitutional

issues which will involve repeated widespread litigation

until they are settled by this Court. The conflict in

the application of the proper criteria to determine a

taxpayer's last known address is also apparent within

the Third Circuit's Eastern District of Pennsylvania

in Wagner v. United States, 473 F. Supp. 276 (E.D. Pa.

1979) and the instant case decided in the Western

-9-

District of Pennsylvania. The court in Wagner held

that the address listed on the taxpayer's form 7940

for the year involved is the proper last known address

and not that which was listed on a power of attorney

form contrary to the opinion of the District Court in

the Western District of Pennsylvania and the Court

of Appeals by affirmation. The perplexity and conflict

between the courts as to what criteria constitute a

taxpayer's "last known address" require this Court to

exercise its supervisory powers to settle this issue

and to provide for clear and equal administration of

justice in all cases.

II.

This Court should grant certiorari to exercise

its power of supervision over the Court of Appeals

because of the departure from the mandated course

of judicial proceedings and the conflict with appli-

cable decisions of this court.

The Court of Appeaits for the Third Circuit has

interpreted the term "last known address" for purposes

of 26 U.S.C. 6212 as "that address where the Secretary

(or his delegate) reasonably believed the taxpayer

wished notice to be sent." Delman v. Commissioner,

+10

384 F.2d 929, 932 (1967), cert. denied, 390 U.S. 952

(1968) .* On the uncontroverted facts before the District

Court, the Internal Revenue Service had certified that

the Petitioner's last known address was Pennsylvania

(App. C. 2-3); therefore, satisfying the provision of

reasonabIness. The Court of Appeals then, however,

permitted the IRS to act in direct conflict with this

standard by affirming that another address was proper.

The plain violation of the statute precluded the

Petitioner from actual notice of any deficiency and

the ability to contest it in the Tax Court. This is in

conflict with the due process standards set forth by

this court in Boddie v. Connecticut, 401 U.S. 371 (1971);

Laing v. United States, 423 U.S. 161 (1976); and

Commissioner v. Shapiro, 424 U.S. 614 (1976) which over-

ruled Phillips v. Commissioner, 283 U.S. 589 (1931).

Since the Petitioner is precluded from seeking

redetermination in Tax Court, this Court requires that

he pay the full tax due before he may either file for

a refund or seek judicial determination of the validity

of the assessment. Flora v. United States, 357 U.S.

4. In Delman, notice was received by the taxpayers and

their attorney in time to properly petition the Tax Court;

due process and equal protection were not at issue.

io,

63 (1958) aff'd on rehearing 362 U.S. 145 (1960).°

The Petitioner, however, as attested to in the District

Court, is unable to pay the purported deficiency. He

is, therefore, precluded from contesting the tax defi-

ciency in any court whatsoever; a discrimination based

on financial means providing equal protection only to the

affluent.©

This Court has said that "[dJenial of an opportunity

to litigate in the Tax Court is out of keeping with the

thrust of the Code" and "[d]Jenying a Tax Court forum to a

particular class of taxpayers is sufficiently anomalous that

an intention to do so should not be imputed to Congress

when the statute does not expressly so provide." Laing

v. United States, 423 U.S. 176 (1975). The Petitioner

has been denied due process and equal protection of the

5. Justice Whittaker, Harlan, Frankfurter and Stewart

dissenting.

6. This Court has never held that wealth alone is a

"suspect criteria" requiring strict scrutiny under equal

protection challenges. San Antonio School District v.

Rodriquez, 411 U.S. 1 (1973). However, it has held that

Tee or the lack of it, cannot be the sole basis on

which a citizen is deprived of some essential public

right or benefit. The essential right to vote, Harper

vy. Virginia Board of Elections, 383 U.S. 663 (1966); to

hold public office, Lubin v. Panish, 415 U.S. 709 (1974);

the right to counsel and a transcript on appeal, Dou las

v. California, 372 U.S. 353 (1963); and the right of

access to the courts, Boddie v. Connecticut, 401 U.S.

371 (1971) are essential public rights or benefits and

if restricted because of wealth must be viewed with strict

scrutiny.

«12

law and has unconstitutionally been restricted from

access to the courts because of the improper appli-

cation of the reasonableness standard to 26 U.S.C.

6212(b)(1) where strict scrutiny is mandated. This

Court should grant certiorari to exercise its power

of supervision over the Court of Appeals because of

the departure from the mandated course of judicial

proceedings, the conflict with applicable decisions

of this Court, and the violation of the Petitioner's

rights.

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.

nt

UNTTEr STITES COUPT CF APEFALS

cop THE TITPr Crecnit

No. 79-1443

VIRGIL R. RT22C,

Apeellant

Vv.

THOMAS L. MAVIS, Cistrict Director

Tnternal Revenue Service

(Civil to. 78-9797 - W.D. of Pa. - Pittsdurgh)

Submitted tinder Third Circuit Fule 12(6)

July 21, 1999

PEPORE: SEITZ, Chief Tutae, GISPONS and WEIS, Circuit Judyes

JNNGNENT OPNEP

After considercstion of the contentions raised by appellant,

it is

ANJUDGED 3NN CRNEFE™ that the joignent of the district court

be and is hereby affirce?.

Costs texed agains: scpellent.

Py the eae

4

sspest:

/ 1* Aww

Tomas ¢. WIAA

Clerk

“sm, uae"

Appendix A-1

Rnited States Court of Aupeals

FOR THE THIRD CIRCUIT

No, .29-1643__...__.

VIRGIL R. RIZZO,

Appellant

Vv.

THOMAS L. DAVIS, District Director

Internal Revenue Service

(Civil No. 78-0797 - W.D. of Pa. - Pittsburgh)

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, ROSENN,

HUNTER, ‘ » HIGGINBOTHAM, SLOVITER, Circuit Judges.

The petition for rehearing filed by Appellant

in the above entitled case having been submitted to the judges who participated in the

decision of this court and to all the other available circuit judges of the circuit in regular

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

and a majority of the circuit judges of the circuit in regular active service not having

voted for rehearing by the court in banc, the petition for rehearing is denied.

By the Court,

Dated: September 22, 1980 ——— a

Appendix A-2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF PENNSYLVANIA d

VIRGIL R. RIZZO,

Plaintiff

vs. : Civil Action No. 78-797D

THOMAS L. DAVIS, District ,

Director, Internal Revenue

Service,

Defendant

ORDER

AND NOW, March , 1979, it is ordered that

the defendant's Motion for Summary Judgment is granted. Plaintiff's

Cross-Motion for Summary Judgment is denied.

. Mc

UNITED STATES DISTRICT JUDGE

cc: Virgil R. Rizzo

Post Office Box 524

Warrendale, Pa. 15085

Gregory S. Hrebiniak, Esq.

Trial Attorney

Tax Division

U.S. Department of Justice

Washington, D.C. 20530

Robert J. Cindrich, U.S. Attorney

United States Courthouse

Pittsburgh, Pa. 15219

Appendix B-1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF PENNSYLVANIA

VIRGIL R. RIZZO,

Plaintiff

vs. ; Civil Action No. 78-797D

THOMAS L. DAVIS, District

Director, Internal Revenue

Service,

Defendant

MEMORANDUM

BARRON P. McCUNE, District Judge

March 4 , 1979

Plaintiff, Virgil R. Rizzo, brings this action

pursuant to provisions of the Internal Revenue Code, specifically

29 U.S.C. §7421(a), seeking an injunction against the defendant,

the Commissioner of the Internal Revenue Service (IRS), which

would bar the IRS from executing a federal tax lien against hin.

The case is before this court on cross motions for summary judg-

ment. The relevant facts are undisputed. Briefs have been con-

sidered and oral argument has been heard.

On March 8, 1978, the IRS assessed tax deficiencies

in the amountsof $259.18 and $35,020.71 against plaintiff for the

calendar years 1970 and 1973, respectively. On May 22, 1978, the

IRS filed a tax lien against the plaintiff. Both the lien and

assessment are valid only if the assessment was made within the

three year statute of limitations contained in 29 U.S.C. §6501 or

the statute of limitations was tolled by the issuance of a valid

deficiency notice within the statutory period. 29 U.S.C. §$§6593

and 6212.

App. B-2

A deficiency notice was sent to plaintiff by certi-

fied mail on October 20, 1977. The statute of limitations ran

to November 14, 1977. If the October deficiency notice is valid,

that statute was tolled and IRS may proceed. If the notice is

invalid, the IRS may not proceed.

The deficiency notice was sent to plaintiff ac P.O.

Box 14611, Fort Lauderdale, Florida 33302. This address was taken

from a power of attorney filed by plaintiff, which stated his

address and named a Florida attorney as plaintiff's representative

for purposes of the IRS investigation of the tax returns for the

years in question. Plaintiff filed this power of attorney with

the IRS on April 4, 1977.

Plaintiff's correct residence address is contended

by plaintiff to be a Warrendale, Pennsylvania post office box.

This Warrendale address appears on all plaintiff's returns from

1970 to the present, including the returns for which a deficiency

was filed. It does not appear whether plaintiff's return for 1977

was filed subsequent to the power of attorney and prior to the

mailing of the notice of deficiency. s

Plaintiff argues that the Warrendale address was his

last known address for purposes of 29 U.S.C. §6212. Since the

notice was sent to the Fort Lauderdale address, plaintiff contends

the notice is invalid.

Deficiency notices are governed by 29 U.S.C. §6212.

That section provides:

"(a) In general. If the Secretary or his

delegate determines that there is a defi-

ciency in respect of any tax imposed by

subtitles A or B, he is authorized to

send notice of such deficiency to the

eel by certified mail or registered

mail.

(b) Address for notice of deficiency.-

(1) Income and gift taxes. -

In the absence of notice to the Secretary or

his delegate under section 6903 of the exis-

tence of a fiduciary relationship, notice of

a deficiency in respect of a tax imposed by

subtitle A or chapter 12, if mailed to the

taxpayer at his last known address, shall be

sufficient for oe of subtitle A,

chapter 12, and this chapter even if such

taxpayer is deceased, or is under a legal

disability, or, in the case of a corpora-

tion, has terminated its existence."

The term "last known address" is not defined in the

Internal Revenue Code. Numerous courts have, however, inter-

preted the term. The Court of Appeals for the Third Circuit has

held:

"The Internal Revenue Service is often

presented with more than one address for a

taxpayer, and where in the course of dealings

between the Commissioner and the taxpayer,

letters are successfully sent to different

addresses, it is unreasonable to assume that

one and not the other of the addresses is the

‘last known address' for the es of giving

the deficiency notice. For this reason in Delman

v. Commissioner ,384 F.2d 929 (3d Cir. 1967)

Cert. denied, 390 U.S. 952 (1968), we accepted

the view that the last known address is an

address to which the Commissioner in all the

circumstances may reasonably believe the tax-

payers wish the notices sent. Berger v. Com-

missioner, 404 F.2d 668, at 671- Cia Cle 1368) .

In this instance the Florida address was the last

address on a document relating to the investigation of the returns

in question. The document named a Florida attorney as a repre-

sentative. The assessment concerned transactions which occurred

in Florida. The returns and record generally indicate that

plaintiff was a physician working for a small professional cor-

poration in Florida from at least 1973 until at least 1977. It

was reasonable, therefore, for the IRS to believe the plainciff

App. B-4

actually resided at the Florida address, rather than the address

used solely for mailing returns. We therefore find the deficiency

notice to have been properly issued.

The record is unclear as to the actual physical

residence of the plaintiff. All exhibits support the conclusion

that plaintiff practiced in the Fort Lauderdale area at all times

relevant to this case, or at least until April of 1977. It is

unusual that plaintiff, while a Florida resident, used a Pennsyl-

vania address for purposes of filing tax returns. The confusion

engendered as a result of plainciff's use of two addresses should

not allow him to escape taxation.

Plaintiff argues, on the basis of numerous cases,

that the address on his returns is his "last known address." These

cases are distinguishable. Plaintiff is attempting to assign to

$6212 a technical meaning never intended by Congress and not

supported by controlling case law in this circuit. For this reason

defendant's motion for summary judgment must be granted.

An appropriate order follows.

Lhayp hteegfider

UNITED STATES DISTRICT JUDGE

Dated: March ii — aeee

cc: Counsel of record.

App. B-5

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App. C-1

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App. C-2