# Petition — Terry v. Bothke > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1284%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 468 U.S. 1201 ## Text 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 I BOW noc cc ccccdccvcccncvdeccesetcees l ED ok bv cwsins cha 00sd6denseees cen saute 1 OD cuvcasdinecandeoneveteesenns 2 PD 2 oackaackensess beens s cskess caneete 2 Reasons for granting the petition.............. 6 CN ia6.c cass ae dewasb ess auuns sen usuene 11 EE WR vs vos eneenandenvesunceevesaenedeu la EE sc nnnvlGRbs dosnactebueonesdeeunees 20a PEELS Sin bc 6-0 6¥ns dbsenNevenseusteuaen 22a EEE oko Sivec veqecchersscdedpececiubes 26a SET \.0.'n bi. vthakeeto.un ce ¥s ccpewesuws sn 27a ET nbvesetuncs secens pbaevbeucbeetens 28a ED vctnod cecsekbewaaveeatsdbes> . caus 3la PE GE 6s akcevicccvevbatusadsevaasesnees 33a 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) IV 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, 3 3 $e 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 ~ aS co 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) 2 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 3 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 4 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 5 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. 6 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 7 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). © To the extent that the court of appeals’ decision can be read as suggesting that the mere violation of a provision of the Inter- nal Revenue Code gives a taxpayer a statutory damages action 8 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. 9 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. 10 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). 11 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 la 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, v. 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 2a 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 3a 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- 4a 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. 5a 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). 6a 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. 7a 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). 8a 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”). 9a 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 I 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. IV 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. Vv Any Finding of Fact deemed a Conclusion of Law is hereby incorporated in the Conclusions of Law. m tgs 25a CONCLUSIONS OF LAW I This court has jurisdiction of the parties to this action. II There is no genuine issue as to any material fact. Hl The Defendant is immune from liability either under the doctrine of qualified immunity or absolute immunity. IV 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. Vv 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 © 7 Tote! number of exemptions Claimed. 2... ee tree tee eee eee eee eeee 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 13 Business income or (loss) (attach Schedule ©)... ee ee eee ee ewes 83 te 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 21 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 z7 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 i i i P sluls E 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1284%3A1. Public record. Not legal advice.