Petition — Terry v. Bothke

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In the Supreme Court of the Anited

OCTOBER TERM, 1983

W. J. TERRY, PETITIONER

Vv.

HANS BOTHKE

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Rex E. oS

Solicitor General

ar aemte Segre

, D.C. 20580 j

(aoe) eo-aet7 ce

QUESTION PRESENTED

Whether a government employee’s qualified immuni-

ty from a constitutional damages suit, alleging conduct

that did not violate any clearly established constitution-

al right of the plaintiff, is abrogated because a court

subsequently determines that certain administrative ac-

tions violated a provision of the Internal Revenue

Code.

(1)

PARTIES TO THE PROCEEDING

In addition to the parties shown in the caption, Fluor

Engineers and Constructors, Inc.; Susan Meyers; and

Michael Castrogiovani were narned as appellees in the

court of appeals.

(i)

TABLE OF CONTENTS

Page

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Reasons for granting the petition.............. 6

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TABLE OF AUTHORITIES

Cases:

Butz v. Economou, 438 U.S. 478.......... 4

Gregoire v. Biddle, 177 F.2d 579, cert.

Pere 8

Harlow v. Fitzgerald, 457 U.S. 800 ..... 5, 6, 7,

8, 10, 11

Maine v. Thiboutot, 448 U.S. 1........... 7

Merrill Lynch, Pierce, Fenner & Smith v.

Curran, 456 U.S. 353 ............0ee eee 8

Middlesex County Sewerage Authority v.

National Sea Clammers Ass’n, 453 U.S.

Db vvbn0ed dered beudueaes eee ptss dese 8

Phillips v. Commissioner, 283 U.S. 589 ... 7

(111)

Procunier v. Navarette, 434 U.S. 555...... 7

Scheuer v. Rhodes, 416 U.S. 232.......... 9

Stankevitz v. IRS, 640 F.2d 205 .......... 4,5

Wood v. Strickland, 420 U.S. 308 ......... 7,9

Statutes:

Internal Revenue Code of 1954 (26 U.S.C.

(& Supp. V)):

Section 6212 (& Supp.V)..............

Section 6213 (& Supp. V).............

Section 6213(a) (Supp. V)........... 3

PN co elincoscccaseven 2

Section GBIS(OM1) .....ccccccccccces 3

Section 6213(bX(2)............005. 7, 8,

m co

Section 6213(bX(2)A) ............45.

ig Cee ew adie a ae

ire. ec abiules abennens

SE, SEP 865s ic caveucsacatexcus

Tax Reform Act of 1976, Pub L. No. 94-455,

90 Stat. 1520 et seq. ........ cece eeeuees

42 U.S.C. (Supp. V) 1988.............006.

Miscellaneous:

H.R. Rep. 94-658, 94th Cong., Ist Sess.

GED o40d cnbe se cohadukeks san ubbeehie

S. Rep. 94-988, 94th Cong., 2d Sess. (1976) . .

Staff of the Joint Comm. on Taxation, 94th

Cong., 2d Sess., General Explanation of

the Tax Reform Act of 1976, (1976), re-

printed in 1976-3 Cum. Bull. (Vol. 1)1.. 7,8

a woe eEES

In the Supreme Court of the Anited States

OCTOBER TERM, 1983

No.

W. J. TERRY, PETITIONER

Vv.

HANS BOTHKE

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of W. J. Terry, a

revenue officer of the Internal Revenue Service, peti-

tions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Ninth Cir-

cuit in this case.

OPINIONS BELOW

The opinion of the court of appeals dated August 26,

1983 (App., infra, 1la-19a), is reported at 713 F.2d

1405. An earlier opinion of the court of appeals (App.,

infra, 20a-21a) is not yet reported. The opinion of the

district court (App., infra, 22a-25a) is not yet reported.

JURISDICTION

The judgment of the court of appeals (App., infra,

26a) was entered on August 26, 1983. A petition for re-

hearing was denied on November 16, 1983 (App., infra,

27a). By order dated February 2, 1984, Justice

Rehnquist extended the time in which to file a petition

(1)

for a writ of certiorari to March 15, 1984. The jurisdic-

tion of this court is invoked under 28 U.S.C. 1254(1).

STATUTES INVOLVED

The relevant provisions of Sections 6213 and 6331 of

the Internal Revenue Code of 1954 (26 U.S.C. (& Supp.

V)) are set forth in App., infra, 28a-30a.

STATEMENT

1. Respondent Hans Bothke filed a federal income

tax form 1040 for 1977. The form contained only aster-

isks in place of figures to show respondent’s income and

tax. Respondent claimed a refund of all amounts with-

held from his salary as shown on the accompanying W-2

form (App., infra, 3la-32a). Along with the 1040 form,

respondent submitted a typewritten affidavit objecting

to the treatment of his 1976 return, and six typewritten

pages of “lengthy exegesis on why he had not provided

the information” (App., infra, 2a, 22a-24a).

On March 5, 1979, the Internal Revenue Service

(IRS) sent respondent a notice of correction of arithme-

tic pursuant to 26 U.S.C. 6213(b) on the ground that

the return exhibited a mathematical or clerical error.

The notice, sent from the IRS Center at Fresno,

California, informed respondent that income taxes for

1977 in the amount of $6,177.87 had been assessed

against him (App., infra, 2a-3a). The notice further in-

formed respondent that if he believed the balance due

was incorrect for reasons other than uncredited pay-

ments, he should return the notice with the correct

payment and an explanation to account for the differ-

ence (id. at 16a).

Respondent replied to the notice on March 15, 1979,

with a letter in which he asserted, among other things,

that the notice was null and void because some of the

figures showed no dollar sign, that his 1977 return and

attachments thereto substantiated his position and fur- .

nished explanations why the balance due shown in the

notice was incorrect, and that the lack of a signature on

the notice was a violation of his rights to equal protec-

tion and due process of law (App., infra, 33a-36a). A

letter from the Fresno Center on May 2 told respon-

dent that the claimed refund had been disallowed

(App., infra, 3a). On June 6, 1979, the IRS Field Office

in Santa Ana, California, sent respondent a notice of in-

tent to levy on his salary or wages, informing him that

he must pay the total amount due within 10 days to

avoid such enforcement action (ibid.; 26 U.S.C. (&

Supp. V) 6331)(a)).

Pursuant to 26 U.S.C. 6213(b)(1), following the issu-

ance of a notice of correction of arithmetic and a 10-day

notice of intent to levy (26 U.S.C. 6331(a)), the IRS

may levy upon a taxpayer’s wages without serving a

notice of deficiency under the provisions of 26 U.S.C.

(& Supp. V) 6212, 6213(a).! However, if within 60 days

the taxpayer requests an abatement of any assessment

specified in a notice of correction of arithmetic, the reg-

ular provisions of the Code come into play and a levy

can only be imposed following deficiency proceedings.

26 U.S.C. 6213(b)(2)(A). Respondent’s March 15 letter

in response to the notice of correction of arithmetic was

not construed by IRS employees at the Fresno Center

as a request for an abatement.

On August 3, i979, at the Santa Ana Field Office, re-

spondent’s case was turned over to petitioner, Revenue

Officer Wendy J. Terry, who received a tax delinquent

account showing respondent’s assessed 1977 tax liabil-

ity. Petitioner’s duty was to investigate and collect the

delinquent account (App., infra, 3a). On November 21,

1979, petitioner contacted respondent by telephone and

demanded payment of the taxes. Respondent, pro-

testing that the IRS had violated his rights, refused

1 A notice of deficiency gives the taxpayer 90 days to petition

the Tax Court to review the asserted deficiency. 26 U.S.C.

(Supp. V) 6213(a).

ey Oe

Bs Atta | Os

payment. After ascertaining that a notice of intent to

levy had been sent to respondent, petitioner served a

levy of wages and salary on respondent’s employer,

which was thereafter executed in the amount of

$3,415.43 on December 3, 1979 (id. at 4a).

In response, respondent resigned his employment (al-

legedly to prevent further levies), filed an amended re-

turn seeking a refund of the amount collected by the

levy, and instituted this pro se lawsuit (App., infra,

4a). Respondent asserted that petitioner’s failure to

provide a notice of deficiency under 26 U.S.C. (& Supp.

V) 6213 prior to the assessment and levy deprived him

of his “rights, privileges and immunities guaranteed un-

der the federal Constitution, and constitute an action in

bad faith, bad motive not authorized by law” (Com-

plaint at 8). Petitioner sought $100,000 in compensatory

and $150,000 in punitive damages from petitioner (id.

at 14).?

2. On motion for summary judgment, the district

court held for petitioner, concluding that she was enti-

tled to official immunity from suit (App., infra,

22a-25a).° The court of appeals, after first issuing a

memorandum opinion affirming the district court,‘ re-

2? Fluor Engineers and Constructors, Inc. (respondent’s em-

ployer), Susan Meyers (Fluor’s attorney) and Michael Castrogi-

ovani (head of Fluor’s corporate payroll department) were also

named as defendants by respondent, but were dismissed as par-

ties soon after the filing of the suit (App., infra, 5a).

* The district court found that petitioner was either entitled

to qualified immunity because her actions were taken in good

faith, or to absolute immunity because she was “‘responsible for

the decision to initiate or continue a proceeding subject to agen-

cy adjudication’” (App., infra, 24a (quoting Butz v. Economou,

438 U.S. 478, 516 (1978)).

‘In its first opinion (App., infra, 20a-21a), the court of ap-

peals concluded that petitioner was immune from liability under

its prior decision in Stankevitz v. IRS, 640 F.2d 205, 206 (9th

Cir. 1981), which accords absolute quasi-prosecutorial immunity

versed (id. at la-19a). The court concluded that peti-

tioner was not entitled to absolute immunity from suit,®

and was also likely to be ineligible for the more limited

shield of qualified immunity (id. at 14a-18a). Quoting

this Court’s recent decision in Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982), the court of appeals stated

that public officials are not entitled to qualified

immuni y from a constitutional damages action if they

violate ‘‘‘clearly established statutory or constitutional

rights’” (App., infra, 15a (emphasis omitted)). The

court concluded that respondent’s “statutory” rights

had been violated by the IRS in this case because his

March 15 letter replying to the notice of correction of

arithmetic should have been “construed” as a request

for an abatement of the assessment, thereby trig-

gering the deficiency procedures of the Internal

Revenue Code prior to the levy on his wages (id. at

to officials who initiate or continue a proceeding subject to agen-

cy adjudication. The court further agreed that, in any event, pe-

titioner was shielded by the doctrine of qualified immunity be-

cause her actions were taken in good faith and were within the

scope of her authority (App., infra, 21a).

5 The court limited its prior holding in Stankevitz v. IRS,

supra, to those situations where the actions taken by the gov-

ernment official are reviewable by an impartial decisionmaker in

a proceeding closely analogous to a judge-supervised trial. Be-

cause respondent did not receive a notice of deficiency entitling

him to petition the Tax Court in this case, the court concluded

that petitioner’s collection activities were not reviewable in a

manner that warranted application of absolute immunity (App.,

infra, Ta-lla). The court also rejected the argument that reve-

nue officers are entitled to absolute immunity based upon the

sensitivity of their collection activities and their concomitant

vulnerability to retributive litigation (id. at 1la-14a). We do not

seek review of that holding here.

15a-16a).¢ The court accordingly remanded the case for

a determination whether petitioner knew of respon-

dent’s reply to the notice of correction of arithmetic,

noting that if she “had this protest or was aware of its

substance, it is questionable whether she can meet the

objective good faith standard” of Harlow (id. at 17a

(footnote omitted)).?

REASONS FOR GRANTING THE PETITION

This case raises an important issue regarding the

proper scope of official qualified immunity, one that is

currently pending before the Court in Davis v.

Scherer, No. 83-490: whether the violation of a statute

or administrative regulation abrogates a government

official’s immunity to a suit claiming damages for a con-

stitutional violation.® Like the lower courts’ decisions in

Davis, the court of appeals’ construction of the objec-

tive qualified immunity test recently set forth by this

Court in Harlow v. Fitzgerald, supra, is erroneous,

and will have a significant adverse impact upon the per-

formance of official duties by government officers.

1. Contrary to the court of appeals’ apparent as-

sumption, violation of a “statutory” right is not suffi-

cient to abrogate an official’s immunity to a constitu-

tional damages action. As we explained in our Amicus

Brief in Davis (at 8-23), violation of “clearly established

* Although respondent's March 15 letter replying to the no-

tice of correction of arithmetic did not explicitly request an

abatement of the assessment set forth in the notice, the letter

did state that the 1977 return and attachments “furnish expla-

nations * * * why the alleged balance due I.R.S. is incorrect”

(App., infra, 34a). The court of appeals construed this passage

as a request for an abatement (id. at 16a).

’ The court did not disturb the district court's finding that pe-

titioner had acted in subjective good faith (App., infra, 17a

n.5).

* We are serving respondent with a copy of our Amicus Brief

in No. 83-490.

vA Die i

statutory * * * rights” (Harlow, 457 U.S. at 818) is

relevant to a public official’s immunity defense only

where, as in Harlow (457 U.S. at 805, 811 n.16, 820

n.36), and as may occur with some frequency under 42

U.S.C. (Supp. V) 1983 (Maine v. Thiboutot, 448 U.S. 1

(1980)), the plaintiff is pressing a statutory cause of ac-

tion. Where the plaintiff seeks damages for violation of

his constitutional rights, a defendant public official is

entitled to qualified immunity unless he violates the

“clearly established” constitutional rights of the plain-

tiff. See, e.g., Wood v. Strickland, 420 U.S. 308, 322

(1975); Procunier v. Navarette, 434 U.S. 555, 565

(1978). Because petitioner did not violate any clearly es-

tablished constitutional right of the respondent,® she is

immune from a suit proceeding on constitutional

grounds. '®

* Respondent plainly was not denied any “clearly established”

due precvess right. There are, as far as we can ascertain, no

cases holding that the violation of a taxpayer's right to abate-

ment under 26 U.S.C. 6213(b)(2) constitutes a denial of due

process. Indeed, prior to the enactment of the Tax Reform Act

of 1976, Pub. L. No. 94-455, 90 Stat. 1520 et seg., a taxpayer

did not even have a statutory right to claim abatement of any

income tax assessment when a notice of a mathematical error

was sent to him. Under the prior statutory provisions, the tax-

payer was permitted by the IRS to explain why he believed

there was no mathematical error, and the assessment was, in

the discretion of the Service, abated if the explanation had mer-

it. Staff of the Joint Comm. on Taxation, 94th Cong., 2d Sess.,

General Explanation of the Tax Reform Act of 1976, at 372

(1976), reprinted in 1976-3 Cum. Bull. (Vol. 2) 1, 384; H.R.

Rep. 94-658, 94th Cong., Ist Sess. 289-290 (1975); S. Rep.

94-938, 94th Cong., 2d Sess. 375 (1976). No cases decided prior

to the enactment of 26 U.S.C. 6213(b\2) suggested that this

procedure was in any way unconstitutional. Cf. Phillipe v.

Commissioner, 283 U.S. 589 (1931).

as suggesting that the mere violation of a provision of the Inter-

nal Revenue Code gives a taxpayer a statutory damages action

2. The decision of the court of appeals will constitute

a huge escalation of the risk of ruinous personal liability

run by Internal Revenue Officers, and will inevitably

cast a chilling pall on their ability zealously to perform

their duties. Under Harlow, government employees

could assume that they were immune from personal

constitutional damages liability arising out of the per-

formance of their official duties so long as they were

careful to comply with clearly established constitutional

norms. The decision below, however, suggests that IRS

employees may be forced to litigate a constitutional

damages suit any time a court concludes, long after the

fact, that notwithstanding their subjective good faith

(App., infra, 17a n.5) their conduct (or actions taken by

their co-workers) did not comply with all the complexi-

ties of the Internal Revenue Code. The decision, in ef-

fect, transforms the Code and its ir )plementing regula-

tions into a mine field in which IRS employees labor at

their own risk. Cf. Gregoire v. Biddle, 177 F.2d 579,

581 (2d Cir. 1949), cert. denied, 389 U.S. 949 (1950).

against an erring IRS official (see App., infra, 18a-19a n.7), the

decision flies in the face of this Court’s precedents controlling

the creation of implied statutory damages actions. See, ¢.g.,

Middlesex County Sewerage Authority v. National Sea

Clammers Ass'n, 453 U.S. 1, 18-15, 19-21 (1981). Congress has

narrowly limited its express statutory authorization for dam-

ages claims against IRS officials. See 26 U.S.C. 7214(a). The

legislative history of 26 U.S.C. 6213(bX(2), moreover, makes it

quite clear that Congress did not affirmatively intend to create

an implied damages remedy for the enforcement of the taxpay-

er’s right to abatement. Staff of the Joint Comm. on Taxation,

supra, at 372; H.R. Rep. 94-658, supra, at 289-290; S. Rep.

94-988, supra, at 375. See generally Merrill Lynch, Pierce,

Fenner & Smith v. Curran, 456 U.S. 353, 377-378 (1982).

In any event, the statutory violation cited by the court of ap-

peals occurred at the Fresno Service Center—prior to the date

that respondent's collection account was assigned to petitioner.

It is, therefore, quite unclear why the statutory violation could

justify a damages claim against petitioner.

Abrogation of official immunity on the basis of non-

constitutional violations of statutory (and, perhaps,

administrative) regulations could well paralyze the tax

collection arm of the Internal Revenue Service. The In-

ternal Revenue Code is replete with complex technical

provisions. Their good-faith interpretation and applica-

tion can lead to what a court, later, will nevertheless

conclude to be some variety of procedurally irregular

assessment or collection of tax. IRS employees are giv-

en specialized training to deal with the complexities of

the Code provisions that they are required to adminis-

ter, but, like other individuals who perform highly tech-

nical tasks, they are capable of error. The decision of

the court below, which dissolves the shield of official

immunity any time a tax assessment or levy turns out

to be procedurally vulnerable, will unjustifiably chill

the vigorous enforcement of the nation’s revenue laws.

IRS employees like petitioner will henceforth think

twice before taking any action that might anger a po-

tential plaintiff. The reins of the qualified immunity

doctrine should not be so tightly drawn. As the Court

noted in Schewer v. Rhodes, 416 U.S. 232, 242 (1974),

the doctrine of qualified immunity assumes that officials

may err, but nevertheless recognizes that “it is better

to risk some error and possible injury from such error

than not to decide or act at all.” See also Wood v.

Strickland, 420 U.S. at 319-320.

The decision in this case poses special problems be-

cause of the encouragement that it gives to members of

the tax protest movement in this county. Many of these

individuals target front-line IRS employees, such as

revenue officers, for vexatious damages suits.'’ The

™! We are advised that, as of mid-1983, there were 547 consti-

tutional damages actions pending against 1,360 employees of the

IRS. A sizeable number of these suits were brought by tax pro-

testers. The government currently expends significant re-

sources and staff hours defending such actions.

constitutional claims raised in these suits are almost al-

ways rejected by the courts, and the doctrine of quali-

fied official immunity has been-—to this point—an effec-

tive means of disposing of frivolous actions without the

necessity of trial. See, e.g., Harlow v. Fitzgerald, 457

U.S. at 817-818 (newly formulated objective qualified

immunity test is designed to prevent public officials

from being unnecessarily subjected “either to the costs

of trial or to the burdens of broad-reaching discov-

ery”).'? But, under the approach of the court of ap-

peals, tax protesters will be able to avoid dismissal of

their suits on immunity grounds any time they can lo-

cate in their files a paper misstep that results in a viola-

tion of any provision of the Internal Revenue Code. Be-

cause of the complexity of the Code—and the prolixity

of most taxpayers in respondent’s position'*—the deci-

sion below creates a host of possibilities for vexation

and harassment of public officials by litigious citizens

eager to seize on any means to delay the disposition of

otherwise meritless constitutional damages actions.

Such a result will disrupt the carrying out of public re-

sponsibilities and will deter able persons from entering

upon a career in the public service.

The Court reformulated the doctrine of qualified im-

munity in Harlow to prevent undue “distraction of offi-

cials from their governmental duties, inhibition of dis-

cretionary action, and deterrence of able people from

‘2 The personal burdens attending the defense of a constitu-

tional damages action can be substantial. Even should a defend-

ant ultimately prevail on the merits of a constitutional claim, his

credit may be adversely affected for months or years by the ap-

pearance of the case on the lis pendens docket. In this case, for

example, petitioner has had to live with a potential liability of

$250,000 for over four years.

'® The portion of respondent’s March 15 letter that the court

of appeals construed as a request for an abatement was buried

in the middle of a rambling communication that began and ended

with a host of frivolous legal arguments (App., infra, 33a-36a).

public service” (457 U.S. at 816). The court below has

fortified the very evils Harlow was designed to dispel.

For the reasons articulated in our Amicus Brief in

Davis, the violation of a statutory provision should not

lead to abrogation of a public official’s qualified immuni-

ty to a constitutional damages action, and the court of

appeals;scontrary conclusion in this case should be

disapproved.

CONCLUSION

The petition for a writ of certiorari should be held

pending the Court’s decision in Davis v. Scherer, No.

83-4 and then disposed of as appropriate in light of

that decision.

Respectfully submitted.

Rex FE. LEE

Solicitor General

MARCH 1984

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 81-5457

DC# CV 80-4450-MML

HANS BOTHKE, PLAINTIFF, APPELLANT,

FLOUR ENGINEERS AND CONSTRUCTORS, INC., ET AL.,

DEFENDANTS,

and

W. J. TERRY, DEFENDANT-APPELLEE.

Appeal from the United States District Court

for the Central District of California

District Judge Malcolm M. Lucas, Presiding

[Argued and Submitted December 10, 1982]

[Decided January 24, 1983]

[Filed Aug. 26, 1983)

OPINION

Before: WRIGHT, KENNEDY, and BOOCHEVER, Cir-

cuit Judges.

WRIGHT, Circuit Judge:

Bothke, a pro se litigant, appeals from an adverse

summary judgment in his suit for damages against an

Internal Revenue Service official for claimed constitu-

tional violations in the allegedly wrongful levy of his

wages. The district court held that the IRS official was

- absolutely immune or, alternatively, was protected by

qualified immunity because she acted in good faith and

within the scope of her authority. This panel affirmed in

a memorandum disposition.

The case is now before us on petition for rehearing.

Because there seems to be some uncertainty in this cir-

cuit over the type of immunity to which IRS agents are

entitled, a fuller treatment of the matter is required.

We construe Bothke’s petition for rehearing as one for

reconsideration, which is granted. The memorandum

disposition of January 24, 1983 is withdrawn.

FACTS

Plaintiff-appellant Bothke filed a timely but unusual

income tax return for 1977. On several lines he entered

asterisks in lieu of dollar amounts. Under the amount to

be refunded, he entered $1154.62, an amount corre-

sponding to taxes his employer had withheld from his

salary as shown on the W-2 form accompanying the

return.

The asterisks were referenced to a lengthy exegesis

on why he had not provided the information. The sub-

stance was that Bothke felt the IRS had mistreated him

over his 1976 return by ignoring the figures he provid-

ed, by failing to help resolve questions about the re-

turn, and by assessing a deficiency before according

him the prior administrative hearing its literature alleg-

edly indicated he was entitled to. It went on to state

that he had concluded the IRS had acted in bad faith

and deprived him of due process and, to protect his con-

stitutional rights, on this return he was exercising his

First, Fourth, Fifth, Sixth, Eighth, Ninth and Tenth

Amendment rights not to provide the information.

The IRS center at Fresno reviewed Bothke’s return.

On March 5, 1979, it sent him a notice of “Correction to

Arithmetic” indicating that “based on the information

received” the IRS had adjusted tax due on the return

from zero to $6755.80, which, after subtracting with-

holdings and adding penalty and interest, left a balance

due of $6177.87. Bothke responded on March 15 with an

objection to the notice on numerous grounds.

On May 2, a letter from the director of the Fresno

IRS center told Bothke that the refund claimed on his

tax return had been disallowed. This document is not in

the appellate record, but it apparently referred to

alleged claims by Bothke that the tax laws were

unconstitutional.

On June 6, the manager of the tax control unit in

Santa Ana sent another letter stating that although no-

tices and demands had been made for payment of

Bothke’s 1977 taxes, no money had been received. It

warned that unless within ten days the IRS received

the amount due or heard from the taxpayer, his wages

could be levied and his property seized. Eight days af-

ter the ten-day notice, Bothke wrote to the Fresno cen-

ter objecting to both documents and denying he had

challenged the constitutionality of the tax laws.

Bothke’s case was later turned over to the field office

at which defendant Terry worked. On August 3, 1979,

Terry was given Bothke’s Tax Delinquent Account

(TDA). Her assigned duties were to investigate and col-

lect delinquent accounts.

The TDA, a one-page agency form, had six printed

lines to show some of the history of the case. The file

did not contain a copy of Bothke’s tax return. It is

unclear what other documents, if any, were in the file

sent to the field office.

Terry twice submitted a “Recommendation for Non-

filing of Notice of Tax Lien” noting, “Because of sensi-

tivity of case, it is in best interest not to file F{ederal]

T{ax) Lfien] until extensive research completed on

T{ax] P{ayer] claims.” During the litigation she stated

that by “sensitivity” she was referring to the volume of

correspondence the IRS had received from Bothke.

She made several requests to the Fresno IRS Center

for a copy of Bothke’s return. Her handwritten nota-

tions on the “TDA History Record” said, “Wanted to

have a copy before seeing T[ax] P{ayer) because of deli-

cacy [blank] of situation.”

When no copy of the tax return arrived after some

time, she elected to proceed without it. She visited

Bothke’s home on November 21, 1979 and, in his ab-

sence, left instructions for him to call. He did so, again

protesting that the IRS had violated his rights. Terry

told him that the tax must be paid and that the IRS

would communicate with him.

On November 26, 1979, Terry served on his employer

a levy of Bothke’s wages. On November 29, she re-

ceived a protest from Bothke by certified mail. He also

made a written protest to his employer. The levy of

$3,415.43 was executed several days later.

Bothke resigned from his job to prevent the further

attachment of his wages. He then filed an amended re-

turn for 1977, using dollar amounts instead of asterisks.

It indicated that a refund was due from the amounts

withheld and levied. When Bothke sued another IRS

agent regarding levy of other property, the Service

elected as a policy matter to abate any then-existing as-

sessment and release any liens with respect to his 1977

taxes.

He brought this suit in federal district court against

his employer, the assistant legal counsel for his employ-

er who had accepted the levy, and IRS agent Terry. He

alleged violations of his constitutional rights and sought

compensatory and punitive damages.’

! After reviewing the record and listening to Bothke’s oral ar-

gument, we are satisfied that this lawsuit and his misguided,

unorthodox 1977 tax return were not frivolous attempts solely

to challenge or burden the tax system or harrass its agents.

Rather, his predominant theme has been that this country’s

laws are just and that government agents must conform to

them, a matter of importance to him as an immigrant who has

lived under totalitarian regimes in Eastern Europe.

The first two defendants were dismissed early from

the case. On the magistrate’s recommendation, the trial

judge rendered summary judgment for defendant Ter-

ry, on the ground that she was either absolutely or

qualifiedly immune, and dismissed the action.

I. ABSOLUTE IMMUNITY

Executive officials have long enjoyed some form of

immunity for acts performed in the course of their offi-

cial duties. The underlying rationales are (1) the injus-

tice of imposing personal liability on one whose public

office obliges the exercise of discretion and (2) the dan-

ger that potential liability will compromise the forth-

right performance of official duties. See, e.g., Schewer

v. Rhodes, 416 U.S. 232, 239-40 (1974).

The rules governing official immunity are largely of

judicial making and have changed considerably over the

years. Earlier cases wrestled with the issue with vary-

ing results. See id. at 241. In some instances courts did

not foreclose recovery on immunity grounds, see, e.g.,

Bates v. Clark, 95 U.S. 204 (1877), and were reluctant

to formulate a rule that would do so irrespective of the

circumstances, see O’Campo v. Hardisty, 262 F.2d 621,

625 (9th Cir. 1958).

Eventually, executive officials performing discretion-

ary functions were protected from damage suits by ab-

solute official immunity, if they had acted within the

“outer perimeter” of their duties. E.g., Barr v. Mateo,

360 U.S. 564, 575 (1959) (opinion of Harlan, J.).

Bothke emphasized below that he was suing agent Terry indi-

vidually for allegedly acting in violation of legal duties and was

not suing the United States. At a hearing the magistrate reject-

ed Terry’s sovereign immunity defense, and correctly so. De-

fendant’s argument, that the suit was really against the govern-

ment because 26 U.S.C. § 7423 authorizes reimbursement of

IRS agents for all damages recovered from them for acts done

in performance of officiai duties, was specious. Cf. also United

States v. Nunnally Investment Co., 316 U.S. 258, 260 (1942).

This general rule was applied to IRS agents.

Sowders v. Damron, 457 F.2d 1182, 1184 (10th Cir.

1972); Bridges v. IRS, 483 F.2d 299, 300 (5th Cir.

1970); David v. Cohen, 407 F.2d 1268, 1271-72 & n.2

(D.C. Cir. 1969); Bershad v. Wood, 290 F.2d 714, 716,

719 (9th Cir. 1961).

A major change occurred when the Supreme Court

concluded that absolute immunity was inappropriate for

state executive officials sued under 42 U.S.C. § 1983

for violating federal rights. Scheuer v. Rhodes, 416

U.S. 232, 238-49 (1974). The Court recognized that

Congress had not intended to abrogate entirely the im-

munity accorded some officials by common law. /d. at

243. While judges and legislators acting within their

traditional roles continued to enjoy absolute immunity,

id. at 243-44, state executive officials would have only

qualified immunity. Jd. at 247-48.

The Court left the immunity question for federal offi-

cials to the courts of appeals when it acknowledged a

damages remedy against those persons in suits for fed-

eral constitutional violations. Bivens v. Six Unknown

Named Federal Narcotics Agents, 403 U.S. 388, 390-98

(1971). This circuit reasoned that immunity accorded

federal officials in Bivens actions should be no greater

than that accorded state officials under section 1983 for

identical violations. Mark v. Groff, 521 F.2d 1876, 1380

(9th Cir. 1975).

Quoting Mark v. Groff, the Supreme Court agreed

with this court and most circuits, which had reached

similar conclusions. Butz v. Economou, 438 U.S. 478,

486 & n.9, 498-500, 505-07 (1978). A different holding

would “stand the constitutional scheme on its head.”

Id. at 504. Qualified immunity for federal executive of-

ficials struck a balance between the interests underly-

ing immunity and the need for a remedy for constitu-

tional violations. Jd. at 497, 504-06.

Significantly for our purposes here, Mark v. Groff

was a suit against IRS officials, as were ‘three of the

other circuit cases cited and followed in Butz. See Weir

v. Muller, 527 F.2d 872, 874 n.1 (5th Cir. 1976)?; Black

v. United States, 534 F.2d 524, 527 (2d Cir. 1976);

G.M. Leasing Corp. v. United States, 560 F.2d 1011,

1015 (10th Cir. 1977), cert. denied, 435 U.S. 923 (1978).

The Supreme Court seemingly accepted no more than

qualified immunity for IRS officials in the remand that

preceded the last-mentioned case. G.M. Leasing Corp.

v. United States, 429 U.S. 338, 360 (1977). The Fourth

Circuit also had selected the qualified immunity stand-

ard for IRS officials. White v. Boyle, 538 F.2d 1077,

1080 (4th Cir. 1976).

After Butz, circuit cases have continued to apply the

qualified immunity standard to tax officials sued for

constitutional torts. See Hall v. United States, 704

F.2d 246, 249, 250 & n.2 (6th Cir. 1983) (levy without

statutory deficiency notice); Granger v. Marek, 583

F.2d 781, 784 (6th Cir. 1978).

Cases in this circuit also have applied that standard.

Hutchinson v. United States, 677 F.2d 1322, 1328 (9th

Cir. 1982) (qualified immunity for activities including

levies); Miller v. DeLaune, 602 F.2d 198, 199 (9th Cir.

1979).

Apparently the only exception was a brief per curiam

opinion in this circuit, Stankevitz v. IRS, 640 F.2d 205

(9th Cir. 1981),* the case relied on by the court below in

2 The Fifth Circuit's attempt to overrule this case insofar as it

may have implied a right of action under the due process clause

of the Fifth Amendment was reversed by the Supreme Court.

Davis v. Passman, 571 F.2d 793, 801 (5th Cir.1978), reversed,

442 U.S. 228 (1979).

3? One other Ninth Circuit case, in a footnote, cited Bershad

v. Wood as an example of a case granting absolute quasi-judicial

immunity to some officials other than judges. Pomerantz v.

County of Los Angeles, 674 F.2d 1288, 1291 n.1 (9th Cir. 1982).

holding Terry absolutely immune. Stankevitz accorded

absolute immunity to IRS officials who audited the

plaintiff’s tax return and assessed a deficiency.

In so doing, the opinion followed another part of

Butz, which stated that executive officials have abso-

lute immunity if, in an administrative proceeding, they

assume a role analogous to that of a judge or prosecutor

in a traditional trial setting. 4388 U.S. at 508-17. Quot-

ing Butz, Stankevitz accorded the IRS defendants ab-

solute immunity because they were “‘responsible for

the decision to initiate or continue a proceeding subject

to agency adjudication.’” 640 F.2d at 206 (quoting 438

U.S. at 516).

Taken out of context, this line quoted from Butz

might easily be read to imply a broader spectrum of im-

munity than the Supreme Court intended. In using the

term “proceeding subject to agency adjudication,” Butz

was not referring broadly to an official's exercise of

judgment in the course of agency action directed at a

private person. “Adjudication” was a technical term for

a quasi-judicial, formal, on-the-record proceeding under

the Administrative Procedure Act. See 5 U.S.C.

§§ 554-557.

The immunity in Bershad was not quasi-judicial, but the then-

existing absolute official immunity for executive officers. The

Pomerantz court did not discuss the intervening changes in the

law wrought by Scheuer v. Rhodes, Butz, Mark v. Groff, and

related cases. We do not, however, criticize the holding in

Pomerantz that jury administrators rendering decisions as to

eligibility of prospective jurors were cloaked with quasi-judicial

immunity.

A comparable oversight occurred with regard to the current

scope of executive immunity in general in a criminal case

against an executive official adverting to civil liability by way of

analogy. See Clifton v. Coz, 549 F.2d 722, 726 (9th Cir. 1977)

(“It is well-settled that a federal official cannot be held person-

ally liable in a civil suit for acts committed within the outer pe-

rimeter of his line of duty”).

The quasi-judicial absolute immunity Butz accorded

certain executive officials was predicated on the close

similarity of this formal agency adjudication to a tradi-

tional courtroom trial. The Supreme Cour: recently re-

emphasized that absolute immunity for participants in

judicial proceedings “stem[s] ‘from the characteristics

of the judicial process.’” Briscoe v. LaHue, 51

U.S.L.W. 4247, 4249 (U.S. Mar. 7, 1983) (No. 81-1404)

(quoting Butz, 438 U.S. at 512). See also Sellars v.

Procunier, 641 F.2d 1295, 1298-1300 & nn.6-9 (9th

Cir.), cert. denied, 454 U.S. 1101 (1981).

Formal administrative adjudication shares with

judge-supervised trials two key qualities that diminish

the need for individual suits to correct constitutional

transgressions: (1) the impartiality of the decision mak-

er and (2) the reliability of the information forming the

basis of the decision. See Butz, 488 U.S. at 512-13.

Safeguards inherent in both forums foster these

qualities.

The first quality is fostered in formal agency adjudi-

cation by the checks and balances afforded when a dif-

ferent person assumes the roles comparable to those of

prosecutor and judge, with the adjudicator independent

of agency control. Hearing examiners are neither re-

quired to perform prosecutorial and investigative func-

tions inconsistent with their judicial role nor to answer

to those who do. Jd. at 513-14. This unbiased adjudica-

tor provides a check on agency zeal. Jd. at 515. One

group of quasi-prosecutorial agency officials immunized

in Butz were those who brought a proceeding to seek

sanctions. Jd. at 515. They did not impose the

sanctions.

The second quality is fostered by having the tran-

script and exhibits of oral and documentary evidence

constitute the exclusive record on which the decision

must be based. The decision maker must explain the

decision with findings and conclusions. An adversarial

10a

procedure allows cross-examination of witnesses, a

challenge to the government’s theories, and the so-

bering requirement of airing these theories in a public

forum. Jd. at 512-13, 517.

The disinterested examiner may accept or reject the

government’s theories, after hearing both sides and all

relevant evidence. Jd. at 517. The other agency “prose-

cutorial” personnel granted absolute immunity in Butz

were those who present evidence in an agency hearing,

the purpose being to encourage the fullest possible

presentation of evidence to the decision maker. See id.

These two qualities are conspicuously absent from

Terry’s activities, as they will typically be from an

agency “proceeding” in the broad sense that is not sub-

ject to the safeguards of formal adjudication. First,

Terry was not, nor was she restrained by, an adjudica-

tor independent of agency control and of a conflicting

prosecutorial role. The role she played, if analogized to

a traditional trial, was an amalgam of the roles of prose-

cutor, judge, jury, and marshal executing the judgment

as well, as her duties included agency investigation and

enforcement, judgmental functions, assessment of in-

formation, and execution of the levy. Second, the intra-

agency file forwarded to her as a basis for her decision

bears little resemblance to the complete and reliable

record created and tested by the adversarial process in

a trial or formal agency hearing.

IRS defendants performing functions the Stankevitz

defendants did may legitimately be covered by the

executive-branch analog to prosecutors’ quasi-judicial

immunity as outlined in Butz, 438 U.S. at 515-17. Their

actions triggered the deficiency proceeding with its pro-

cedural safeguards, including preseizure, preassess-

ment notice and an opportunity for the taxpayer to take

his case to the impartial forum of the Tax Court.

In contrast, Bothke’s complaint is that statutorily

prescribed safeguards were circumvented in his case in

lla

disregard of his vigorous protests at every stage. The

IRS sent him no deficiency notice, a jurisdictional pre-

requisite for a petition to the Tax Court, and provided

no impartial, formal agency hearing.

Stankevitz ruled that the proper forum for taxpayer

complaints of unfair treatment is in a subsequent en-

forcement proceeding by the agency. 640 F.2d at 206.

This rule cannot apply when the agency has bypassed

the “proceeding” and gone precipitously to

enforcement.

Qualified immunity for federal executive officials is

the general rule and absolute immunity the exceptional

case, a proposition first voiced in Butz, 438 U.S. at

506-08, and recently reiterated in Harlow v.

Fitzgerald, 102 S.Ct. 2727, 2736 (1982). Were we to ac-

cord absolute immunity to defendant Terry under the

guise of applying Butz, its carefully delineated excep-

tion would overwhelm the rule set forth in that case.

That IRS agents performing specific tasks had abso-

lute immunity in Stankevitz does not mean that all IRS

agents are also absolutely immune irrespective of what

tasks they perform. There is no such blanket immunity

for an arm of government.

The immunity available depends not on an official’s

job title or agency, but on the function that person was

performing when taking the actions that provoked the

lawsuit. See, e.g., Richardson v. Koshiba, 693 F.2d

911, 913-14 (9th Cir. 1982) (even judicial personnel are

not absolutely immune when performing executive

functions); Harlow, 102 S. Ct. at 2735. See also

Scheuer v. Rhodes, 416 U.S. at 247.

As demonstrated, Terry does not qualify for the

quasi-judicial absolute immunity delineated in Butz.

We must inquire if she was entitled to absolute immuni-

ty on some other ground.

Absolute immunity is accorded only to those public

officials “whose special functions or constitutional sta-

12a

tus requires complete protection from suit.” Harlow,

102 S.Ct. at 2732. These are members of the legislature

and judiciary performing their characteristic functions,

and the President of the United States. See id. at

2732-33.

For executive officials other than the President, the

Supreme Court has extended absolute immunity to

those playing an integral part in judge-supervised trials

or in closely analogous proceedings. See id. at 2733

(citing Butz, 438 U.S. at 508-17); Briscoe v. LaHue, 51

U.S.L.W. at 4249-52. It has denied absolute immunity

to senior aides to the President, Harlow, 102 S. Ct. at

2736, Cabinet members, see id. at 2734 (citing Butz,

438 U.S. at 506), and state governors, see Harlow, 102

S. Ct. at 2733 (citing Schewer v. Rhodes, 416 U.S. at

247-48).

Because Terry does not fit within the subcategory of

executive officials held absolutely immune in Butz, a

new category of absolutely immune executive officials

would have to be created to exempt her unqualifiedly

from liability. New categories are recognized only in

“exceptional situations where it is demonstrated that

absolute immunity is essential for the cunduct of public

business.” Butz, 438 U.S. at 507.

A defendant official bears the burden of providing

that “public policy requires an exemption of that

scope,” id. at 506, that “the responsibilities of his office

embraced a function so sensitive as to require a total

shield from liability.” Harlow, 102 S. Ct. at 273. A

court evaluates this possibility by assessing the impor-

tance of public policy considerations through “reference

to the common law, or more likely, our constitutional

heritage and structure.” Jd. at 2736 n.20.

Terry has made only a cursory argument that tax col-

lectors are entitled to an absolute immunity independ-

ent of the quasi-judicial immunity recognized in Butz.

She contends that the duties of an IRS official responsi-

13a

ble for seizing property invite personal retaliation in

the form of vexatious damage suits and that absolute

immunity is essential if these officials are effectively to

conduct the important public business of tax collection.

Police officers, whose important duty to protect the

public may involve deprivations of liberty through ar-

rests, are entitled only to qualified immunity, Scheuer,

416 U.S. at 245, though their actions would seem equal-

ly likely to invite retaliatory suits. Law enforcement

personnel executing levies were traditionally not pro-

tected by any immunity under the common law. IRS

agents are “relatively low-level executive officers” with

a correspondingly “narro{[w] range of official discre-

tion.” Mark v. Groff, 521 F.2d at 1380-81. Cf. G.M.

Leasing, 560 F.2d at 1014 (levying is “ministerial” rath-

er than “discretionary” activity).

Other cases addressing IRS agents’ damages liability

for levy-related activities have chosen the qualified im-

munity standard. Hall v. United States, 704 F.2d at

249-50 & n.2; Hutchinson v. United States, 677 F.2d at

1328; G.M. Leasing Corp. v. United States, 560 F.2d at

1015.

We recognize the government’s interest in collecting

taxes. Congress’s taxing power is granted by the Con-

stitution, U.S. Const. art. I § 8, cl. 1; amend. XVI.

The importance of tax collection is reflected in statutes

which, for example, prohibit its injunction. See 26

U.S.C. § 7421(a).

But the law reflects also a Congressional determina-

tion that the taxpayer should be afforded certain proce-

dural rights, which the IRS is bound to respect. See,

e.g., Laing v. United States, 423 U.S. 161 (1976). In

balancing these interests, Congress has determined

that violations of the procedural rights at issue here are

exceptions to the Anti-Injunction Act. See 26 U.S.C.

§§ 6213(a), (bX2), 7421(a).

l4a

Private ownership of property and its enjoyment se-

cure from arbitrary governmental interference are

cherished, fundamental concepts, see U.S. Const.

amends. III, IV, V, VIII, X, XIV, and are two of the

features distinguishing this society from those with op-

pressive governments.

Unjustified governmental invasion of property rights

by seizure can occasion physical hardship, see Commis-

sioner v. Shapiro, 424 U.S. 614, 629-30 n.11 (1976), but

the affront to the citizen’s netions-ef the place of gov-

ernment in our society, when personally confronting

the misuse of its awesome power, may engender a tur-

moil that is more profound than the physical effects of

the deprivation. Cf. Bivens, 403 U.S. at 391-92, 394-96.

The Service, with its broad authority including that

of levying property, has power that is considerable, and

in some ways unique, to disrupt taxpayers’ lives. The

needs of the public fise are vital, but their mere invoca-

tion cannot override all rights of the public for whom it

exists, without reference to the propriety of that

invocation.

With the IRS’s broad power must come a concomi-

tant responsibility to exercise it within the confines of

the law. The Court has emphasized that no official is

above the law, and that broad powers present broad op-

portunities for abuse. Butz 438 U.S. at 505-06. Cf.

Mark v. Groff, 521 F.2d at 1380 n.4.

We conclude that agents in Terry’s position do not

meet the Supreme Court’s test for creating new catego-

ries of absolutely immune executive officials.

II. QUALIFIED IMMUNITY

The decision below reflects a determination that Ter-

ry acted with subjective good faith. However, when it

was rendered, officials asserting the qualified immunity

defense had to demonstrate that they met an objective

standard of good faith as well. See, e.g., Wood v.

Strickland, 420 U.S. 308, 321 (1975). Ignorance or dis-

15a

regard of settled, undisputable law negates this defense

even if subjective good faith exists. /d.

The Supreme Court has since revised the summary

judgment test for qualified immunity, making objective

good faith the only requirement. The district court is to

place its “[rjeliance on the objective reasonableness of

an official’s conduct.” Harlow, 102 S. Ct. at 2739.

“(Glovernment officials performing discretionary func-

tions generally are shielded from liability for civil dam-

ages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Id. at 2738 (em-

phasis supplied).

Bothke argues that Terry has not met this standard,

because (1) the IRS allegedly did not follow statutory

procedures, and (2) he warned Terry twice that she was

proceeding illegally. Because of the lower court’s dispo-

sition on the immunity issue, it did not reach the ques-

tion whether the IRS proceeded correctly.

For a levy to be statutorily authorized in the circum-

stances here, two conditions must be fulfilled. First, a

10-day notice of intent to levy must have issued. See 26

U.S.C. § 6331(a). Terry ascertained that this had been

done. Second, the taxpayer must be liable for the tax.

Id. Tax liability is a condition precedent to the demand.

Merely demanding payment, even repeatedly, does not

cause liability.

For the condition precedent of liability to be met,

there must be a lawful assessment, either a voluntary

one by the taxpayer or one procedurally proper by the

IRS. Because this country’s income tax system is based

on voluntary self-assessment, rather than distraint,

Flora v. United States, 362 U.S. 145, 176 (1960), the

Service may assess the tax only in certain circum-

stances and in conformity with proper procedures.

Bothke believes that the IRS had to follow the defi-

ciency proceedings of 26 U.S.C. $§ 6212, 6213(a), un-

16a

der which he was entitled to a preassessment notice of

deficiency which gave him 90 days to petition the Tax

Court. Terry argues that the IRS was proceeding prop-

erly under an exception to the statutory requirement,

whereby no deficiency notice is necessary if the amount

assessed is the result of a mathematical or clerical error

on the face of the return. Jd. § 6213(b)(1), (g)(2).

Even under this exception, the regular deficiency-

proceeding safeguards are mandatorily triggered if the

taxpayer requests an abatement within 60 days. Id.

§ 6213(b)(2). Bothke responded to the IRS’s Correction

to Arithmetic well within that time.

The IRS failed to construe his protest as a request

for abatement because he did not cite this statute. But

the notice to Bothke did not suggest that the IRS ex-

pected a statutory reference before it would conclude

that the the [sic] taxpayer’s procedural rights under

the statute had been triggered. Rather, it indicated

that Bothke could challenge the correction merely by

“let[ting] us know if you believe that the balance due is

incorrect.”

More importantly, the statute does not require that

the taxpayer put a legal classification on his protest.

The Service, however, with its expertise, is obliged to

know its own governing statutes and to apply them re-

alistically. Bothke’s strongly worded protest should

reasonably have been construed as a request for abate-

ment. It seems the IRS proceeded illegally even under

its interpretation of the proper procedure to use for his

tax return.‘

* Terry has in the alternative suggested briefly that the pro-

cedure used was proper because no determination of a prior no-

tice of deficiency is required when the assessinent is based on

the return as filed. The authority offered is Collins v. United

States, 45 A.F.T.R. 2d 616 (E.D. Mo. Dee. 3, 1979). In that

case, the taxpayers had self-assessed the taxes but failed to pay

them. Under the facts here, this argument is frivolous. As the

magistrate noted, when Terry's counsel suggested this below,

17a

If Terry had this protest or was aware of its sub-

stance, it is questionable whether she can meet the ob-

jective good faith standard.5 This information is not in

the record on appeal.®

We remand for a determination whether Terry met

the objective good faith standard. The matter of

“if you read [Bothke’s Form 1040) literally it indicates that the

$1,100 should come back to him. It doesn’t indicate that he owes

anything.”

5 This is not to be read to imply that where the file passed to

the field officer masks, either carelessly or systematically, facts

pertinent to the legality of the levy, immunity will automatically

result. If the field officer has reasonable notice of possible ir-

regularities (hat would make a levy illegal, whether the notice

comes by examination of the file or otherwise, the matter must

be resolved, if the exercise of discretion to levy is to have a fac-

tual basis of adequate scope. This is especially true in a routine

case where no jeopardy assessment is involved and the circum-

stances are not exigent. This follows from an application of good

faith immunity standards to the fact that field officer job duties

include investigating an account before determining that a levy

is warranted.

We recognize that several agents may deal with a case before

it reaches the field officer and that any procedural error in these

earlier stages are committed by officials other than the one ulti-

mately assigned the account for investigation and levy.

Bothke’s March 15 protest to the Correction to Arithmetic

exemplifies the sort of thing which, if known to the field officer,

would provide reasonable notice of preexisting procedural im-

proprieties. It is the item which, after a review of the record in

this case, stands out as raising a genuine issue of Terry's good

faith under the objective standard. The district court's findings

of her subjective good faith survives the ch arly erroneous test.

® Terry did have the “Taxpayer Delinquent Account,” but we

cannot decipher the abbreviations and transaction codes for the

items in the printout. The date of one item corresponds approz:i-

mately with the date the IRS received Bothke’ 8 March 15

Our consideration of this matter was hampered in other ways.

The copy of Terry's handwritten “TDA History Record” in the

record on appeal is so poorly reproduced as to be partially illegi-

ble. We are unable to decipher the numerical codes Terry used.

There appears to be an unexplained hiatus on lines 9 and 13.

18a

Bothke’s protest to the Correction to Arithmetic and

Terry’s knowledge of it will be considered.

Bothke is clearly not without fault in the creation of

this situation in view of the manner in which he pre-

pared his 1977 tax return. The Service, however, has

efficient methods for dealing with such returns. Our de-

cision will not hamper it from pursuing those proper

methods in similar situations. Cf. Fullerton Market

Cold Storage Co. v. Cullerton, 582 F.2d at 1078.

III. OTHER ISSUES

Bothke alleges that the district court denied him a

jury trial. The court did not do so explicitly; rather,

lack of a jury trial was a consequence of granting sum-

mary judgment. The magistrate indicated that Bothke

would have received a jury trial had the matter gone to

trial. This question is not ripe for review.

Our decision, as was the decision below, is limited to

the immunity issue. We express not opinion on other

matters that might result in an early resolution.”

7 Terry argues in her opposition to the petition for rehearing

that Bothke’s complaint failed to state a constitutional claim,

despite his allegations of constitutional violations. The rule of

absolute official immunity still holds for common-law torts.

Summary collection procedures have been upheld against due

process arguments where the taxpayer had an opportunity for a

post-seizure notice and hearing. E.g., Phillips v. Commission-

er, 283 U.S. 589, 593-601 (1931); Bomher v. Reagan, 522 F.2d

1201, 1202 (9th Cir. 1975); Tavares v. United States, 491 F.2d

725, 726 (9th Cir. 1974), cert. denied. 420 U.S. 925 (1975); ef.

Fuentes v. Shevin, 407 U.S. 67, 91-92 & n.24 (1972) (summary

seizure proper when “essential that governmental needs be im-

mediately satisfied”) (quoting Phillips, 283 U.S. at 597) (em-

phasis by the Shevin Court).

However, in those cases the attack was on the procedures

themselves, not on acts which allegedly bypassed statutory pro-

cedural safeguards as here.

Morever, the Supreme Court has said that in some instances

due proceas concerns may be implicated in tax seizures. Com-

missioner v. Shapiro, 424 U.S. 614, 629-32 & nn.11-12 (1076).

19a

CONCLUSION

Our previous disposition is withdrawn. The decision

below is reversed insofar as it held defendant Terry ab-

solutely immune. The rest of the judgment is vacated

and the case is remanded for a determination whether

the defendant met the objective good faith standard

and for further proceedings as may be necessary.

The Fifth Circuit has held that in circumstances similar to

those here, a cause of action could be implied under the due

process clause of the Fifth Amendment. Seibert v. Baptist, 599

F.2d 743 (5th Cir. 1979), reversing on rehearing 594 F.2d 423

(5th Cir. 1979), cert. denied, 446 U.S. 918 (1980). The Sixth Cir-

cuit appears to have done so. Hall v. United States, 704 F.2d at

249 n.1.

Moreover, several courts have suggested that though federal

officials are absolutely immune from liability for state and

common-law torts, they should not be absolutely immune if the

plaintiff relies on a cause of action under federal law short of a

constitutional claim. See, e.g., Lawrence v. Acree, 665 F.2d

1319, 1326 & n.11 (D.C. Cir. 1981). See also Harlow, 102 S. Ct.

at 2738 (good faith immunity in Pivens suits applies insofar as

conduct does not violate “clearly established statutory or con-

stitutional rights of which a reasonable person would have

known”) (emphasis supplied). Bothke alleges violations of feder-

al statutes that accorded him specific rights.

Another issue, raised but not reached below and not argued

on appeal, is whether a Bivens action should be barred because

Bothke may have had an alternative remedy. Compare Bivens,

403 U.S. at 396-97, to Bush v. Lucas, 51 U.S.L.W. 4752 (U.S.

June 13, 1983) and Carlson v. Green, 446 U.S. 14 (1980).

Terry suggested below that Bothke might have been able to

get an injunction under an exception to the prohibition of en-

joining tax collection, see 26 U.S.C. §§ 6213(a), 6213(b)(2),

7421(a), because the IRS allegedly failed to give him the

statutorily required notices. However, cases seem to have limit-

ed the preclusion question to whether the plaintiff had available

certain alternative retrospective remedies, not whether the

plaintiff might have prevented the violation with an injunction

sought on the assumption that government officials would act il-

legally in the future.

20a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 81-5457

DC# CV 80-4450-MML

HANS BOTHKE, PLAINTIFF-APPELLANT,

Vv.

FLUOR ENGINEERS AND CONSTRUCTORS,

INCORPORATED, ET AL., DEFENDANTS,

and

W. J. TERRY, DEFENDANT-APPELLEE

Appeal from the United States District Court

for the Central District of California

District Judge Malcolm M. Lucas, Presiding

[Argued and Submitted December 10, 1982]

[Filed Jan. 24, 1983]

MEMORANDUM

Before: WRIGHT, KENNEDY, and BOOCHEVER, Cir-

cuit Judges

Bothke appeals a grant of summary judgment for the

defendants Fluor Engineers and Constructors, Inc. and

Wendy Terry. He contends t. at the levy on his wages

without a notice of deficiency violated his constitutional

rights, and seeks several million dollars in compensato-

ry and punitive damages.

The standard rules concerning summary judgment

apply. Bieghler v. Kleppe, 633 F.2d 531, 533 (9th Cir.

1980). Terry’s affidavit shows that she had the authori-

2la

ty to initiate or continue a proceeding subject to agency

adjudication. She is absolutely immune from liability.

Stankevitz v. IRS, 640 F.2d 205 (9th Cir. 1981). Be-

cause Bothke presented no evidence controverting Ter-

ry’s affidavit, summary judgment was proper.

The pro se appellant argued effectively that he was

sincere in presenting evidence of injury due apparently

to errors in the district office of the Internal Revenue

Service. His frustration over these errors is under-

standable. It is clear that he is not and was not at the

time in question a tax protester. Unfortunately, how-

ever, the case law does not permit recovery.

Even if Terry did not have absolute immunity, she

would be protected by qualified immunity from liability.

Butz v. Economou, 438 U.S. 478 (1978). She presented

evidence that her actions were taken in good faith and

within the scope of her authority. Bothke responded

only with conclusionary allegations.

Affirmed.

22a

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

No. CV 80-4450-MML (JR)

HANS BOTHKE, PLAINTIFF,

Vv.

FLUOR ENGINEERS AND CONSTRUCTION INC.,

SUSAN MEYERS, MICHAEL CASTROGIOVANI,

W. J. TERRY, DEFENDANTS.

[FILED APR. 3, 1981]

REPORT AND RECOMMENDATION *

ON A CIVIL RIGHTS COMPLAINT

This Report and Recommendation is submitted to the

Honorable Malcolm M. Lucas, United States District

Judge, pursuant to the provisions of 28 U.S.C. § 636

and General Order 194 of the United States District

Court for the Central District of California.

Plaintiff filed a 1977 Form 1040 with the IRS in

which he placed asterisks (instead of dollar amounts) in

the boxes designated for wages, interest earned, and

business income. Thus, the form contained no informa-

tion pertaining to his taxable income for the year.

Plaintiff did enclose a W-2 form which indicated that

$1154.62 had been withheld from his wages and he en-

tered that figure on the Form 1040 as being an over-

payment to be refunded to him. On the Form 1040

plaintiff indicated that he objected to questions he did

not answer “in accordance with my Ist, 4th, 5th, 8th,

9th and 10th amendment rights.”

Defendant is an Internal Revenue Officer. In 1979, in

the due course of her duties, she received a Tax Delin-

quent Account which indicated that Plaintiff was being

23a

assessed in excess of $6,000 in connection with his 1977

Form 1040. Defendant made demand upon Plaintiff but

he refused to pay. Defendant then served a Levy of

Wages and Salary upon Plaintiff's employer. Plaintiff

notified Defendant that he objected to the levy as being

in violation of the law. Plaintiff’s employer honored the

levy and Plaintiff has brought suit in this Court charg-

ing Defendant with a violation of his Civil Rights.

Plaintiff contends that since the Form 1040 did not

contain a mathematical error nor did it indicate that

any taxes were due, he was entitled to a deficiency no-

tice and an opportunity to contest any assessment. De-

fendant contends that the W-2 form itself was evidence

that taxes were due and, therefore, levy was a proper

procedure. Defendant, in levying, however, acted sole-

ly upon the Tax Delinquent Account, not having seen

the Form 1040 prior to the execution of the levy.

Both parties have filed Motions for Summary Judg-

ment. Both parties have submitted declarations or affi-

davits and Defendants testified at the hearing on the

Motions.

If levy was the proper procedure then Plaintiff does

not have a cause of action against Defendant. However,

it is not necessary to decide whether levy was proper,

whether deficiency procedures were proper, or whether

both possibilities were proper as Defendant has immu-

nity from libility in this case.

As a federal official, Defendant has, at the very least,

a qualified immunity for good faith acts performed

within the scope of her authority. Butz v. Economou,

438 U.S. 478 (1978); Clifton v. Cox, 549 F.2d 722 (9th

Cir. 1977). The decision and power to levy were within

Defendant’s authority. Based upon the facts presented

to her, including Plaintiff’s objectons to the levy, and

even assuming Plaintiff’s view of the tax laws to be cor-

rect, Defendant is guilty of no more than a good faith

error of judgment and is immune from liability.

24a

Additionally, the recent Ninth Circuit case of

Stankevitz v. IRS, ETC., 640 F.2d 205 (9th Cir. 1981)

(see attached Exhibit A) holds, quoting Butz, supra,

that IRS agents have an absolute immunity if they

were “responsible for the decision to initiate or continue

a proceeding subject to agency adjudication.” Defend-

ant falls within that category.

CONCLUSION

In light of the foregoing discussion, this Magistrate

recommends that the Court make the following findings

of fact and conclusions of law:

FINDINGS OF FACT

Defendant is an Internal Revenue Officer.

Defendant received a taxpayer Delinquency Account

which indicated that an assessment of taxes had been

made against Plaintiff in connection with his 1977 in-

come tax return.

Defendant requested payment from Plaintiff which

he refused. Defendant served a Levy on Plaintiff’s em-

ployer who complied with the Levy.

The Levy by Defendant was performed in the course

and scope of her employment and in the good faith be-

lief that it was authorized under the Internal Revenue

Code.

Any Finding of Fact deemed a Conclusion of Law is

hereby incorporated in the Conclusions of Law.

m tgs

25a

CONCLUSIONS OF LAW

This court has jurisdiction of the parties to this

action.

There is no genuine issue as to any material fact.

The Defendant is immune from liability either under

the doctrine of qualified immunity or absolute

immunity.

Summary judgment should be entered in favor of the

Defendant and against the Plaintiff and Plaintiff’s Mo-

tion for Summary Judgment should be denied.

To the extent these Conclusions of Law also contain

Findings of Fact, they shall be deemed incorporated

within the Findings of Fact.

DATED: This 3rd day of April, 1981.

/s/ Joseph Reichmann

JOSEPH REICHMANN

United States Magistrate

26a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 81-5457

DC# CV 80-4450-MML

HANS BOTHKE, PLAINTIFF-APPELLANT.

Vv.

FLUOR ENGINEERS AND CONSTRUCTORS, INC., ET AL.,

DEFENDANTS

and

W. J. TERRY, DEFENDANT-APPELLEE.

APPEAL from the United States Court for the Cen-

tral District of California

THIS CAUSE came on to be heard on the Transcript

of the Record from the United States District Court for

the Central District of California and was duly

submitted.

ON CONSIDERATION WHEREOF, It is now here

ordered anu adjudged by this Court, that the judgment

of the said District Court in this Cause be, and hereby

is REVERSED IN PART, VACATED IN PART

AND REMANDED.

NOTE: BILL OF COSTS ATTACHED,

AWARDING appellant HANS BOTHKE costs in the

sum of $210.50.

A TRUE COPY

ATTEST

By: Pat Nametower

PAT NAMETOWER

Deputy Clerk

Filed and entered AUGUST 26, 1983

27a

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 81-5457

DC# CV 80-4450-MML

HANS BOTHKE, PLAINTIFF-APPELLANT,

Vv.

FLUOR ENGINEERS AND CONSTRUCTORS, INC.,

SUSAN MEYERS, MICHAEL CASTROGIOVANI, AND

W. J. TERRY, DEFENDANTS-APPELLEES.

[FILED Nov. 16, 1983]

ORDER DENYING REHEARING

Before: WRIGHT, KENNEDY and BOOCHEVER, Circuit

Judges.

The petition by appellee Terry, received by the Clerk

on October 11, 1983, seeks rehearing. The petition may

be filed and is denied.

/s/ E. A. Wright

E. A. WRIGHT

Circuit Judge

DATE: NOVEMBER 16, 1983

28a

APPENDIX F

Internal Revenue Code of 1954 (26 U.S.C. (& Supp.

V)):

Section. 6213. Restrictions applicable to deficien-

cies; petition to Tax Court.

(a) Time for Filing Petition and Restriction

on Assessment.

Within 90 days, or 150 days if the notice is ad-

dressed to a person outside the United States, af-

ter the notice of deficiency authorized in section

6212 is mailed (not counting Saturday, Sunday, or

a legal holiday in the District of Columbia as the

last day), the taxpayer may file a petition with the

Tax Court for a redetermination of the deficiency.

Except as otherwise provided in section 6851 or

section 6861 no assessment of a deficiency in re-

spect of any tax imposed by subtitle A, or B, chap-

ter 41, 42, 43, 44, or 45 and no levy or proceeding

in court for its collection shall be made, begun, or

prosecuted until such notice has been mailed to the

taxpayer, nor until the expiration of such 90-day or

150-day period, as the case may be, nor, if a peti-

tion has been filed with the Tax Court, until the

decision of the Tax Court has become final. Not-

withstanding the provisions of section 7421(a), the

making of such assessment or the beginning of such

proceeding or levy during the time such prohibition

is in force may be enjoined by a proceeding in the

proper court.

(b) Exceptions to restrictions on assess-

ment.

(1) Assessments arising out of mathematical

or clerical errors.

If the taxpayer is notified that, on account of a

mathematical or clerical error appearing on the

return, an amount of tax in excess of that shown

on the return is due, and that an assessment of

the tax has been or will be made on the basis of

what would have been the correct amount of tax

29a

but for the mathematical or clerical error, such

notice shall not be considered as a notice of defi-

ciency for the purposes of subsection (a) (prohib-

iting assessment and collection until notice of the

deficiency has been mailed), or of section

6212(c)(1) (restricting further deficiency letters),

or of section 6512(a) (prohibiting credits or re-

funds after petition to the Tax Court), and the

taxpayer shall have no right to file a petition

with the Tax Court based on such notice, nor

shall such assessment or collection be prohibited

by the provisions of subsection (a) of this section.

Each notice under this paragraph shall set forth

the error alleged and an explanation thereof.

(2) Abatement of assessment of mathemati-

cal or clerical errors

(A) Request for abatement.

Notwithstanding section 6404(b), a taxpayer

may file with the Secretary within 60 days af-

ter notice is sent under paragraph (1) a re-

quest for an abatement of any assessment

specified in such notice, and upon receipt of

such request, the Secretary shall abate the as-

sessment. Any reassessment of the tax with

respect to which an abatement is made under

this subparagraph shall be subject to the defi-

ciency procedures prescribed by this

subchapter.

(B) Siay of collection.

In the case of any assessment referred to in

paragraph (1), notwithstanding paragraph (1),

no levy or proceeding in court for the collec-

tion of such assessment shall be made, begun,

or prosecuted during the period in which such

assessment may be abated under this

paragraph.

30a

* * * * *

Section 6331. Levy and distraint

(a) Authority of Secretary.

If any person liable to pay any tax neglects or re-

fuses to pay the same within 10 days after notice

and demand, it shall be lawful for the Secretary to

colleet such tax (and such further sum as shall be

sufficient to cover the expenses of the levy) by levy

upon all property and rights to property (except

such property as is exempt under section 6334) be-

longing to such person or on which there is a lien

provided in this chapter for the payment of such

tax. Levy may be made upon the accrued salary or

wages of any officer, employee, or elected official,

of the United States, the District of Columbia, or

any agency or instrumentality of the United States

or the District of Columbia, by serving a notice of

levy on the employer (as defined in section 3401(d))

of such officer, employee, or elected official. If the

Secretary makes a finding that the collection of

such tax is in jeopardy, notice and demand for im-

mediate payment of such tax may be made by the

Secretary and, upon failure or refusal to pay such

tax, collection thereof by levy shall be lawful with-

out regard to the 10-day period provided in this

section.

* * * + *

3la

APPENDIX G

j 1040 U. §. Individvet Income Tax Return 1977 4

fe he poo becey b-Dacete 31, 19)), @ ee mabe pew beg teeey e . 907) amon

FA 565-90-6893 O95 1 host nome og eal mw

HANS J BOTHKE oe Pe 5051 STU

: a 400 S FLOWER LL 156 To Per At Rae ees exci soar Oe

F » ORANGE CA 92668 pare 3 ot fasrectioen HONS

aaa : “s GR .

é , “oe - pe a =

Presidentia!

ieestinn p> Oe yew wom $1 to go te this func? . eee esesnesese ves No} Note: Creching ~ves™ wi

Campeign Mot increase your tes or re

fund If joint return, does your spouse want $1 to go to this fund? . Yes Mo | Sve rour refund,

1 S Single

Check Only 2 Marned filing joint retum (even Hf only one had income)

One Box Married tung separately. 1 spouse is etso filing, give spouse's socie! couutiy number in the space abor

ONS enter DEN ROME NON DP. pana ncuneenanenasnanbanaseacewatiimmeen

4 Unmarried Head of Household. Enter qualityng nome Bk ~ See pore 7 of insincction

5 Qualitying widow(er) with dependent child (Year spouse died B 19 ). See page 7 of Instruction:

Exemplioats

heen 60 Yourself C) 65 oF over C) Bling ee ay

Alwoys

the “Yoursel!” -”

bos. Chech b C) Spouse C) 65 oF over a Bling

other bores Il

tone p | }

they epply. ¢ First names of your dependent chiidren who lived with you PR. Erte: number of oO

Pildren Maes

(2) meme of 114) De Ge peedont G) Did pee wets more

: ‘te | ones [Ss | Soca | sense” | oomte E

" >»

5 tt

E : } hay j

o° . e

F GB = Wages, salaries, Ups, and other employee compensston. bg ay 6d wees cocece eecee ; =

9 tmilerest income. (If over $400, attach We Bye ecccccceccccencseceeece

£| 200 Owidents (" “Guten se Weneeemcs? 5 20d tem excision = — ——— Ju -, Balance p> | 20 NONE

3 (See popes 9 ond 17 of watructions)

=< (If you have no other income, skip lines 11 through 20 and go to line 21.)

2 32 State and toca! income tax refunds (does sot apply W refund ie fer year you toot stenderd deduction). . . | 21 NONE |

E| 312 Alimony recewed. . 2.06 eee Ee TT Tere TCrUnCTeTrreee yt rt NONE

i £

14 Capita! gain of (loss) (attach Schedule DD)... we eee een een ne wneeeeeees

15 50% of capital gain distributions not reported on Schedule D. 2. we ee ee ee LS NONE

1 36 Wet gain oF (loss) from Supplemental Schedule of Gains end Losses (attach Form 4797). . [26 NONE

17 Fully taxable persions and annuities not reported on Schedule EE... 6. ee ee ee LP N L.

38 Pensions, ennuities, rents, royatties, pertnerships, estates or trusts, etc. (attach Schedule E). | 38

29 Ferm income or (loss) (attach Schedule F). 2 we eee eee eee eee eee eee eo LBD

20 enlist imag Mapat iy herdsmen py >. VE +70 > LS

Yorot income. Add lines 6. 9. and 10¢ Treen sa e e

met85

22 Moving expense (attach Form 3903) . Serrrrrr errr) «= z

Z3 Employee business expenses (attach Form 2106). ...... | 23] NONE

24 Peyments t an individual retirement errangement (rom et- NONE

tached Form $329, Part Ill)... 6s eee eee tonnes LM

2S Payments to @ Keogh (H.R. 10) retirement plan. ..... . | 23.

26 Ferteited interest pensity for premature withdrewe! eh

LE eR SY RI RERUN R=

20 fashilty Income enciusion (sick pay) (ettach Form 2440)... 22 eee eee eeeees

. Emter here ond on tine 32. f you want oe

sluls

32a

UNITS.

form 3040 19T7) vw 2

yer ee ee e

33 ff you Remure deductions, enter excess Remired Geductions from Schedule A, Eine 41. . . - ee

yey Go NOT Kemize deductions, enter Foro. . . . . TREREMEEEEEE ETS Ff

Hf you have wnearned come ond can be claimed 21 8 dependent on your parent's

return, check here BD [] end see page 11 of the instructions. Atso see page 11 of

the Instructions M:

e You ore maried Ring ¢ separate return and your spouse Kamizes deductions, OR

@ You ore o dust-status shen.. ; ee

34 Tox Table Income. Subtract line 33 trom line 32 . YYTTTrerrint fe

Sete: See instructions for line 35 on page 1). Then find your tax on the amount on line 34

tn the Tex Tebdies. Enter the tax on bre 35. However, if tine 34 is more then $20,000

GAG 0,000 Hf you gheekes box 2 of 5) of you have More exemptions then those covered in the

* Tau Tebies for t hing status, use Part | of Schedule TC (Form 1040) to hgure your tax. You

must olso ute dule TC if you thie Schedule G (Form 1040), income Averaging.

35 Tex. Check H trom [) Tax Tables or (7) Schedule TC 2... ee eee ee ee wees 35 ee

36 Additional taxes. (See page 12 of instructions.) Check if from [) Form 4970, [) Form 4972. NONE

1C Form 5544, () Form 5405, or () Section 72(m)(5) penatty tex... .....-- -+-1 36

37 Total. Add hnes 35 and 36... ee ee te ee tee eee ee ee eee ee eens & | 37 ee

38 Credit for contributions to candidates for public offee. . . . . . 18 NONE

39 Credit for the elderty (attach Schedules RARP).......4- 39 NONE

40 Credit tor child and dependent care expenses (attach Form 2441), | 40 NONE

41 tnvestment credit (attach Form 3468)... 6. 6 ee ee eee ee LAD NONE

42 Foreign tax credit (attach Form 1116)... ...666- +++ L_ 42] NONE

43 Work Incentive (WIN) Credit (ettech Form 4874)... 1. 66+ 4s NONE

44 New jobs credh (attach Form 5884) . TYVTROLELTT TC NONE

45 See page 12 of instructions... . 05.565 Terriers. ee

46 Total credits. Add nes BB through 45... 1 ww ett et et es a ee

47 Balance Subtract tine 46 from tine 37 and enter difference (but not less then zero). ... Bh | 47 ee

48 Self-employment tax (attach Schedule SE)... ee ee ee ee eee TreTerere ~-| en

49 Minimum tax, Check here Bm [7] and attach Form 4625... 2.6 + + eoveccccece ~+| _ NONE

50 Tex from recomputing prior-year investment credit (attach Form 4255) .. 5.2.65. ~+-| NONE Lal

$1 Social security tax On tip income not reported to employer (attach Form 4137) ......+- 5) __ NONE

52 Uncoliected employee social security tax on tips (from Form W-2) . 2... eee ee ee ee | 2

53 Tax on an individual retirement arrangement (attech Form S329)... . . 6 6s ee eee -| NONE

$4 Total tax. Ado lines 47 through 53... 6 ee ee ee ee ee eee ee es ei! Be e¢

‘ Total Federal income withheld (attach Forms W-2, W-2G, and

SN, yc sec cc dap sccece sc LMR 115462

56 1977 estimated tax payments (include amount allowed as credit

ee ok Bence ct pace ont none

SE rr rte ous os cag Dinboh, ens quan 2 of ar

lastructions. ff eligible, enter child's name &. . . . . ...—..| 57

SB Amount peid with Form 4868 2.0... ee eee ee eee eee oe | NONE

a 59 Excess FICA and RATA tax withheld (two or more employers) . . . | 59 NON

B 60 Credit for Federal tax on special fuels, etc. (attach Form 4136). . | 60 NONE

f G1 Creda trom ¢ Reguisted investment Company (sttech Form 439)... . . . | 6) NONE

6le See pege 13 of instructions... ...- seer eerenvnccvcest Gla ae

62 Vetal. Aad knes 55 Psp bbeeeeccseccceoossseocece eee eens 62 ee

63 W tine G2 is lorger than line 54, enter emount OVERPAID. . 0... ee eee

ml 664 Amount of line G3 to be REFUNDED TO YOU... ee ee eee eee

a 6S Amount of fine 63 to be credited on 1978 estimeted tax... . > LS

66 tf tine S4 ts lerger than line 62, enter BALANCE DUL. Attsch chech or money order for hl ernount none

Geyebte te “taterna! Revenue Service.” Write secis! securty number en chech or money order. . . & | 6S

(Crock p> () Hf Form 2210 (2210F) is otteched. See poge 14 of instructions.)

Under pensties of perpry, | Geciore thet | Rave enarunrd ts retum inciudeng accompanying schedules and statements, and te the brit

of my tnowtedce ond bebe! Mm trun, Correct, and complete. Deciereten of prepere: (ether then taapoyer) ts based on af intermeten @

——-— ee ee ee mm wee eee FO ee aw

ha pms questions in wool EST ce with rAcoeros

and 10th amendaant richts based on attached ach oy Ti A,B,6,D,E

33a

APPENDIX H

Hans Bothke

400 S. Flower LL-156

Orange/CA. 92668

INTERNAL REVENUE SERVICE

PROTEST AND OBJECTION

P.O. Box 12586

Fresno, CA. 93778

Chief, Correspondence Section

I, Hans Bothke, hereby protest and object against

the instrument identified as “Document Locator Num-

ber 95211-034-41200-9, dated March 5, 1979 on the fol-

lowing grounds:

1. The instrument is not signed, not authenticated,

not verified, not trustworthy, not reliable, is not at-

tested to its validity, has not been given the effect of

one’s act, has no operating effect, and bears no evi-

dence that it was executed, as the courts have ruled:

To sign, to affix one’s name to a writing or instru-

ment for the purpose authenticating it, or to give it ef-

fect as one’s act. McCall v. Textile Industrial Insti-

tute, 189 N.C. 775,128 S.E.349. The act putting down a

man’s name at the end of an instrument to attest its va-

lidity. Smith v. Greenville County, 188 S.C.349,199

S.E.416,419. To authenticate, means to give verity, to

impart to the instrument its validity and operating ef-

fect. Hartley v. Ferrel, 9 Fla. 374,380. The Authentica-

tion of a written instrument is such official attestation

as will render it legally admissible in evidence Mayfield

v. Sears, 32 N.E.816,133 INd. 86. Authentic, means

authoritative, reliable, trustworthy, real, pure, true or

genuine. Woods v. Jastremski, 11 So.2d 4,8,201

La.1092. As a result pursuant to law the forementioned

instrument has no operating effect and is null and void.

34a

2. Additional defect in the forementioned instrument

is, that some figures show no dollar mark ($). Where

the dollar mark has been omitted to show what it

meant, it has been held void. Todd v. Rines, 2N.W.

497,500,26 Minn.201.

3. The above mentioned instrument states: (1) Under

Correction to Arithmetic: Based on the Information re-

ceived we have adjusted your return accordingly; (2)

Under identified Code No:01: A penalty has been added

because your return was not filed:

In view thereof you have adjusted my return and you

have added a penalty because my return was not filed,

you have contradicted yourself. I can only conclude that

your intention is to deceive me, as I have filed my re-

turn, which you have confirmed under (1) above.

4. My original return filed April 10, 1978 with Exhib-

its A through E and my letter dated August 9, 1978

with attachments, substantiate my position and furnish

explanations why I have filed with objections and why

the alleged balance due I.R.S. is incorrect. See specifi-

cally Exhibit A, Affidavit dated March 24, 1978. Please

take again judicial notice; There can be no sanction or

penalty imposed upon one because of his exercise of

constitutional rights. Sherar v. Cullen, 481 F.2d 946

(1973).

5. The unexecuted instrument does not contain suffi-

cient information: (1) to substantiate the alleged correct

balance of tax in the amount of 6,755.80; (2) on what in-

formation was the adjustment of my return based on.

The unexecuted document demonstrates an arbitrary

exercise of power under color of law in complete disre-

gard of my constitutional-civil and common law rights,

and in complete disregard of your agencies and/or

agents legal duty and obligation pursuant to law.

6. I do not waive my right to receive a proper exe-

cuted instrument from the I.R.S. attested to it’s validi-

ty. Statutory law requires me to sign every and/or all

35a

documents directed to the I.R.S., an Administrative

Agency, Title 5 U.S.C. section 559 of the administra-

tive Procedure Act states: Requirements or Privileges

relating to procedure apply equally to agencies and per-

sons; Therefore your unexecuted document directed to

me deprived me of the equal protection of the law. The

fifth amendment to the U.S. Constitution also guaran-

tees me procedural due process of law. Procedural due

process requires a signature on documents to attest to

their validity.

In view thereof you have violated my right to due

process of law. Government officials are themselves ac-

countable in court for compliance with rule of law appli-

cable to administrative agencies. Transworld Airlines

Inc. v. C.A.B., 385, F.2d 648,390 U.S. 944, 19 Led 2d

1133.

7. As a result of the issue of this unexecuted instru-

ment by your agency and/or agents I am compelled un-

der duress and fear of waiving my property and fear of

statutory penalty; (1) to use my free time to do exten-

sive legal research; (2) to perform some act, specifically

to answer your effectless instrument pursuant to law,

which deprives me of the exercise of my free will. “Du-

ress” exists when a person is induced by another’s un-

lawful act to perform some act under circumstances

depriving him of the exercise of free will Newsom v.

Medis, 239, P.2d 784, 786, 205 Okl.574. Wolff v.

Bluhm, 70 N.W. 73, 74, 95 Wis.257, 60 Am.St.Rep.

115. Duress by government or its officers is defined by

the Supreme Court as Moral Duress not justified by

law. Maxwell v. Griswold, 51 U.S.(How.) 242,256,13

Led 4065.

In view of the foregoing outlined unlawful actions and

conduct by your agency and/or agents, I hereby again

request: (1) The guaranty that you comply with the law;

(2) The protection of my constitutional, civil and com-

36a

mon law right, which is your agencies and/or agents le-

gal duty and obligation;

That I can file my return without the specifically

claimed objections.

Please return the completed Interrogatories (at-

tached) within fifteen (15) days. None compliance with

my request will force me to take legal action in court.

Thank you for your cooperation,

respectfully

/S) Hans Bothke

HANS BOTHKE

Executed this 15th day of March 1979.

ce: with attachment to

Office of Chief Counsel

Internal Revenue Service

Washington, D.C. 20224.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.