# Petition for Writ of Certiorari — Holloway v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1962%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 481 U.S. 1018 ## Text NO. ° . / x OO Lat S A py Sugene Coun. US, i eC 15 \367 * JOSEPH F. SPANIOL, JR. Bleek SUPREME COURT OF THE UNITED STATES LAWRENCE M. HOLLOWAY and ROFNA J. HOLLOWAY, Petitioners. Resvondent, ON APPEAL FROM THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT PETITION FOR WRIT OF CERTIORARI ROBERT J. SOLNER SOLNER & SOLNER, P.C. Attorneys for Petitioners 30300 Telegraph Road, Suite 177 Birmingham, MI 48010 (313) 647-8650 EDITOR'S NOTE: THE FOLLOWING PAGES WERE POOR HARD COPY AT THE TIME OF FILMING. IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED. STATEMENT OF THE QUESTIONS PRESENTED FOR REVIEW 1. WHETHER "DUE COURSE" IN AN OFFER IN COMPROMISE IS TO BE DETERMINED BY THE "REGULAR PRACTICE AND PROCEDURE OF TE GOVERNMENT" RATHER THAN STANDARD CONTRACT LA\’ WHERE THE RESULT IS A SEVEN AND -ONE- HALF (7-1/2) YEAR DELAY BETWEEN THE OFFER 2e. WHETEER THE GOVERNMENT'S FAILURE TO PROCEED IN DUE COURSE IS THE EQUIVA- LENT OF REJECTING THE OFFER IN COMPRO- MISE, THxo STATUTE OF LIMITATIONS THEREBY RUNNING? 3. WHUTHER THE TAXPAYERS ESTAB- ISHED A PRIMA FACI® CASE OF THE GOVERN- MENT'S FAILURE TO CONSIDER THEIR OFFER IN COMPROMISE IN DUE COURSE OR IN ACCORDANCE WITH THE REGULAR PRACTICE AND PROCEDURE OF THE IRS WHEN THE OFFER COULD NOT EVEN BE CONSIDERED NOR ACTED UPON AS IT WAS NOT PROPERLY EXECUTED PER THE IRS' OWN maAr?IT moO ATT. DHmaArITAmM NS? | u if we 1U daw AD SULATIONS ee ee ae Statement Presented Table of TABLE OF CONTENTS of the Questions for I a ol a es Ee Reports of Opinions Below.....ccccccccccdt tatement of Grounds on which Jurisdiction is Invoked...cccccccccccceldl Regulations which the Case Involves....5 Statement of the Case....ccccccccececech DP UGCPECCERCC Conese bd geeeeseeecdeaks Annendix A - Oninon of the Court of DUMERMG Wh Ge REG ben sesonkedevececees 35 Avnendix Court Appendix Court Appendix Apvendix Court Annendix Court Appendix B = Ovinion of the District dated January 11, 1985.......30 C = Opinion of the District Gated May 12, -1980....cccceocchO D - Offer in Compromise..Lodged with the Court E- Order of the District Gatec December 16, 1971......55 F —- Judgement of the District dated January 11, 19&5.......62 G - Order of the Court of Appeals denying Motion for a - 32- Appendix H - Exhibit 5700-19 - Irternal Revenue Manual..........-.05 Avvendix I - Exhibit 5700-36 - Internal Revenue Manual..cccccccceee lV Appendix J = Exhibit 5700-37 - Internal Revenue Manual..ccccccccceel 3 REPORTS OF OPINIO:iS BELOW Appendix Page United States Court of Appeals Opinion No. 85-1128 filed August 18, RO ea is ts a United States District Court Tastern District of Michigan Southern Division - Flint “Memorandum Ovinion and Order No. 76-72023 filed 6 Ne ee Ne a re |” United States District Court Eastern District of Michigan Southern Division - Flint Memorandum Opinion and Order No. 76-72023 filed May 12, 1960.....46 STATEMENT OF GROUNDS ON WHICH JURISDICTION IS INVOKED (i) United States Court of Appeals Ovinion No. 85-1128 decided and filed August 18, 1986. 28 U.S.C. ao hie 1254(1). (ii) United States Court of Appeais Order denving Defendants/ Avpellants' Petition for Rehearing filed September 15, 1956. (iv) A federal Court of Appeals has decided an important question, of federal law which has not been, but should be, settled by this Court. USC Rule 17.1(c). REGULATIONS WHICH THE CASE INVOLVES Internal Revenue Regulation Sec. 601.202(a) See page 20 of Argument Tnternal Revenue Refulation Sec. 301.7122-1 See Page 20 of Argument 2 Administration, CCH Internal Revenue Manual, para.'s 57(10)7.2, 57(10)(21).1, 57(10)2.1, 57(10)2.27, 57(10)3.1, 57(10)3.2, 57(10)6.32 and 6.331, 57(10)7.1, 57(10)7.51, 57(10)7.521 and 7.522, and 57(10)(23).73 See Pages 14-16; 21-32 of Argument i bse ct "3 ‘oF a > 4 n ota hic anc @* » . wae Iara PVE —) r 21, 1964, determined fencies in the income and ions to taxes due from in the amount of Ninety Yundred Eighty-Four Dollar m “5 STATEMENT OF CASE *ants ($90,456 yo 2. > \ + + -«o emon Fotal assessment rc na Trvont wer 4 2 and .vie iV y Wad ). ~ fy . y ”“ amr yy -_-s ec wi 2 4 asi . eras se Wa s os ~ oa & & YF KX & ~ — . s ror settle fawn Ditty ~ + +he ~ =~ ~-_ > wt . + we - ~ ana nroacessing O ¢' ma ae sw er a ee / ~~ al e far mn Comnrom ~ a4 / ~ Te | ae ne ced ‘ w & A* Ma r ~<_ ~ oT Ase ~-, be ct? . ct ct ~y ‘ “" on “oe 9 ene 2 > Ye * . was signed by > Government the al . . ~ Financ @ ;* B ay. Hollow ve ly ~ ~ mina cri - + _ — o the Devartmen + u referred > vO ceecings pre + criminal the because followays Ly filing of a fraudulent Offer In Com- inancial Statement. On May 20, 1970 the U.S. Government indicted in Count I both Defendants/ Apnellants for knowingly and wilifully filing a false Statement of Financial condition and Other Information and charzed that Lawrence Holloway claimed the ownership of assets having a fair ket value of Four Thousand Four Hun- dred Dollars ($4,400.00) when he in fact had and knew he had, additional assets havine a fair market value of Twenty-Four rn usand Four Hundred Twenty-Six Dollars 16, 1971, wherein the Court held that the vnre-indictment delay by the gov- ernment, under the circumstances of this case, seriously impaired the Defendants' abilitv to present a defense. A copy of the Order of Judre Roth is attached hereto in the Appendix page 55. The Government's appeal from the Gismissal of the indictment was dismissed on February. 21, 1972. On June 12, 1972, the Internal Revenue Service wrote to the Defendants indicating the IRS could not proceed on the Offer In Compromise until form 433 from Lawrence M. and Roena J. Holloway was updated and delivered to them. On February 13, 1973, the Internal Revenue Service mailed a letter to the Yolloways notifying them that their Offer In Compromise was rejected for the reasons that (1) the Defendants had not furnished the necessary information for a -93- field examiner to determine the merits of the Offer, and (2) the incomplete inves- tigation of the Offer showed that the amount apneared to be less than that which could be collected. That the neces- sary financial information had not been furnished was clear upon sudmission of the Offer in 1965 because Mrs. Holloway had never signed the financial informa- tion form in the first instance. On September 30, 1976, the Govern- ment filed this action in the District Court to reduce the 1964 tax assessments to a Judgment in the amount of One Hundred Lightv-Nine Thousand Seven dHun- dred Sixty¥Four Dollars and Thnirty-Seven Cents ($189,764.37) plus interest from June 1, 1976. Both narties thereafter filed Motions for Summary Judgment which the ae |: District Court denied in a written opinion dated May 12, 1980. The Honor- able Stewart A. Newblatt was persuaded that a genuine issue existed as to whether or not the Government proceeded in due course in considering the Offer In Compromise, as required by the contract, and set the matter for an Evidentiary Hearing. A copy of the Opinion is attachec hereto in the Appendix page 46. The Evidentiary Hearing was held on July 23, 1980. On the Government's renewed Motion for Summary Judgment, the District Court granted its Motion For Summary Judgement in a written opinion dated January 117 1985. A copy of the Opinion and Order is attacned hereto in the Appendix page 39. Judgment was entered on the same date, a copy of which is attached in the Appendix page 62. The District Court's decision was appealed to the United States Court of Appeals for the Sixth Circuit on or about February 6, 1985. Oral Arguments were heard on July 25, 1986 and the Court's Ovinion affirming the District Court's Judgment was decided and filed on August 18, 1986. Holloways filed a Petition and Brief for Rehearing on September 2, 1986, which was denied by Order of the Court dated Sentember 15, 1986, a covy of which Order is attached in the Anvendix page 64, a ARGUMENT Issue One Issue Two The contractual language Eontuined in the Offer, drafted by the Government and therefore strictly construed against them, states as follows: "...this offer will be considered and acted upon in due course," during which time period the taxpayer agrees to the suspension of the statute of limitation waiving any benefit during the period. The Government relies on the case of U.S. v Cooper-Smith, 310 F.Supp.479 (ED NY, 1970), aff'd 439 F.2d. t09> 40m 92, 2971) in arguing that "due course" depends on the regular practice and procedure of the Government. The Government is contending that regular practice and procedure allows for a seven and one-half (7-1/2) year delay between “a the Offer being submitted and rejected in writing. Petitioners argue that the six-year statute of limitations which was tolled by their offer of compromise began to run again when the Internal Revenue Service referred the matter to the Department of Justice for possible criminal proceed- ines. Petitioners further argue that this was an implied rejection of the offer of compromise and that no with- drawal by them or formal rejection by the IRS was necessary to start the statute of limitations running again. The Internal Revenue Manual itself makes clear that tne Offer is to be construed according to contract law, as follows: 57(10)7.2 PUBLIC POLICY ee (1) An accepted offer, like any contract, is an agreement between two parties resulting from a 'meeting of the minds'. rhe Service...represents the government's interest in the negotiations...(Emphasis Added) e Administration, CCH Internal Revenue Manual, para. 57(10)7.2 Special Procedures at 7339. 57(10) (21) Rescission of Accepted Offers §7(10)(21)..1 General (1) A compromise is a contract which is binding and conclusive on both the Government and the proponent anc precluces further inquiry into the matters to wniech it PYreiates. In the ab-« sence of fraud or a mutual mis- take, the courts have consis- tently denied either party recovery Of any part. -of the consideration given with a set- tlement when it was proverly rendered under a compromise arreement. However, an offer in comvromise which has. been accepted under a mutual mistake as to a material fact, or because of the false represen- tations made by one party about a material Tact. may be rescinded or set aside. The meaning, validity and consider- ation of such a contract is subject to interpretation bv a ae te court. Emphasis Added) 2 Administration CCH Internal Revenue Manual, para. 57(10) (21).1, Special Procedures, at 1379. Under general contract law, if no time is fixed in the offer within which acceptance must be made, it is a general rule that accentance must be within a reasonable time. 1 Williston On Con- tracts Sec. 54, pp 172-173 (3rd. ed.); Rubsam v Harley C. Loney Co., 117 F. Suvp. 164, aff'd 217 F.2d.353, cert denied 76 S. Ct. 69, 350 U.S. 833, 100 L.Ed. 744, rehearing denied 76 S.Ct. 149, 350 U.S. 898, 100 L.Ed. 789. Where ambiguous lanfuage is used in limiting the time for acceptance, i.e., “in due course", its meaning should be determined by what the taxvayers reasonably under- stood the Government to have intended. See The Law of Contracts, Simpson, Sec. i De 20, pp 24-25 (2d.ed., 1965). In the case at bar, seven and one half years is clearly not reasonable, nor could it be argued the taxpayers reason- ably understood that "in due course" meant such an excessive lensrth of time. Further, under general contract law, the power of acceptance is terminated by illegality sunervening between the makingr of an offer and its acceptance. The Law of Contracts, Calamari and Perillo, Sec. 33, p 61 (lst. ed., 1970); Restatement, Contracts Sec. 50. The Michigan Supreme Court in Krause v Boraks, 341 Mich 140, 155 (1°54) further held as follows: All contracts which are founded on an act prohibited by a stat- ute under a penalty are void although not expressly declared to be so and neither law nor eouity will enforce a contract mace in violation of such a statute or one that is in violation of public policy. Jaenicke v Davidson, 290 Mich 295. « 17 = It is therefore clearly arguable, under basic contract law, that the offer was rejected when the case was referred to the Department of Justice for criminal proceedings to be instituted against Appellants on October 18, 1968, because of the filing of an alleged fraudulent Offer In Compromise and Financial State- ment. Petitioners disagree with the analy- sis of the Sixth and Fifth Circuits in their adontion of the reasoning of the Ressler court in United States v Ressler, 576 F.2d. 650, 652-53 (Sth Cir. 1978), in that such reasoning nvlaces' the entire burden on the taxpayer to withdraw his Offer after indictment or an unreasonable length of time while placing no resvpons- ability on the government to act reason- ably allowing abuses under the guise of their "regular practices and procedures" which is clearly inconsistent with basic contract law and the government's alleged position that the Offer in Compromise is a contract. Issue Three The Offer together with Form 433 executed onlv by Lawrence Holloway were submitted by Taxpayers on June 10, 1965 and accepted for consideration or pvroces- sine by the IRS on June 18, 1965. The IPS' acceptance of this non-processable Offer and their failure to immediately return the Offer to the taxpayers for completion while accepting the benefits of the taxpayvers' waiver of the Statute of ket ecetuns was clearly not in accord- ance with their regular practices or procedures which is the definition adopted for acting in "due course” by the Sixth Circuit Court herein and the Second Circuit in United States v Cooper-Smith, 310 F.Supp. 479, 482(E.D. N.Y. 1970), aff'd, 439 F.2d 1095 (2nd Cir. 1971). Internal Revenue Regulation Sec. 601.203(a) states that Offers in Compro- mise must be submitted on Form 656 "prop- erly executed and accompanied by a financial statement on Form 433", and Regulation Sec. 301.7122-1 requires that IRS' forms be used and further states as follows in Sec. 4.02: Sec.4. GENERAL GUIDELINES PELATING TO THE ACCEPTABILITY OF Aili OFFER IN COMPROMISE... -O2 A Statement of Financial Condition and Other Informa- tion, Form 433, signed by the taxpayer, is required in a offer in compromise cases based on the taxpayer's inability to pay the total amount due, regardless of the type of tax or amount of liability involved. (Emphasis added) o 26 = Further, under the regular practices and procedures of the Government, the offer, if accepted, is an agreement to be interpreted under the law of contracts i.e., the offer must be definite in its terms and conditions, therefore, where there is a sienificant error or omission in the offer, the offer cannot be ac- cepted and the waiver acceptance should not be completed by th IRS until the offer is processable as the Internal Revenue manual makes clear: 57(10)2 Preparation of the Offer (Form 656) §7(10)2.1 General (1) The offer in compromise is the taxpayer's written proposal to the Government and, if ac- cepted, is an agreement en- forceable by either party under the law of contracts. There- fore, it must be definite tn its terms and conditions. « 21 -« (2) All offers in compromise must be submitted on Form 656. The taxpayer submitting the of- fer will complete all relevant items on the forms and file the original and one copy with the service center serving the dis- trict office where the tax- vayer's liability is or would be outstanding, regardless of where the taxpayer legally resides or has its principal place of business. See Exhibit 5700-19. (a) Whenever an offer is submitted to a district office, the receiving emplovee should review the offer to ensure its adequacy, for further proces- Sing. if there are significant errors or omissions, sucn as: Tilecal identification of Ifa- bility, no amount offered, lack of signature, Form 433 missing @etc., the receiving district Office employee will return the offer to the proponent with a note specifying what must be corrected or added before offer processing can begin. The waiver acceptance should not be Completed until a processabvle offer is received. pxnidit 5700-10 presents a checklist which may be used as a guide to determine if Form 656 has been prepared correctly. when a vrocessable offer is received from the proponent, the receiv- ing employee should complete a 22 « acceptance of the waiver of Statutory period by signing or securing the signature of an appropriate delegated official in the lower left corner of Form 656 and promptly forward it to the service center. (>) The taxpayer may cor- rect the offer by either: l1 entering and ini- tialinge the changes on the Form 656 submitted, or 2 filing a new Form 656. (3) Form 433, Statement of Financial Condition and Other Information, must accompany Form 656 when an offer is basec wnolly or partly upon doubt as to collectibility. (Emphasis added) 2 Administration, CCH Internal Revenue Manual, para, 57(10)2.1 at 7331. Attached hereto in the Appendix page 65, is the form 656 Checklist referred to above which makes clear Form 433 must. be attached to the Offer in this case. The following IRS Manual provisions further substantiate that a "complete" = 23 - Form 433, i.e., signed by both taxpayers in this case, must be submitted or the offer must be corrected or rejected by the IRS immediately as insufficient for processing: S7(10})2.,27 Grounds For Offer Item 7 of Form 656 is to be used for giving the facts and reasons why the offer in com- promise should be accepted. If the offer is based only on doubt as to collectibdility, it is only necessary to state, ‘lI cannot pay these taxes,' since a financial statement must accompany the offer. (Emphasis added) 2 Administration, CCH Internal Revenue Manual, para. 57(10)2.27 Special Procedures at T3si3e 57(10)3 Preparing the Financial State- ment 57(10)3.1 Prescribed Form (1) A taxpayer seeking to com- promise a tax liability based on doubt as to collectibility rust submit Form 433, Statement of Financial Condition and Otner Information. i SE me (2) All items on Form 433 must be completed. To avoid any misunderstanding, enter "none", "N/A", "not applicable", or other similar entry for those items that do not apply to a particular taxpayer. (3) If the taxpayer submits additicnal documents or other financial statements to supple- ment Form 433, thev must be clearly referenced@ on Form 056 and conclude with the tax- paver's signed declaration uncer penalties of perjury. 57(10)3.2 Refusal to Submit Financial Statement b> a taxpayer ovrofessing inability to pay on Form 656 does not submit the requirec Form 423, the offer will be immediately returned to the taxpayer. As the Service can- not begin to determine whether the amount offered is also the maximum amount collectible, the offer will be considered as insufficient for processing. (Emphasis added) 2 Administra- tion, CCH Internal Revenue Manual, paras. 57(10)3.1 and 3.2, Collection Activity at 7334. As the Manual specifically addres- ses, the IRS' own procedures require the IRS to act promptly on all offers and summarily reject those which do not include a complete Form 433 when based on inability to vay: 57(10)6.32 Transcript of Tax Accounts (1) In order that the district office may act vromptly on all offers in compromise, the ser- vice center sends the offer file without computer tran- scripts of account. Tran- scripts will be forwarded to the district by the requesting service center upon receipt from the National Computer Center...(Emphasis added) % = F 57(10)6.331 Special Procedures Function Ac- tion (1) All offers (except those under jurisdiction of the dis- trict Examination function) will be forwarded to SPf from the service center... a 26 @ (2) SPF will take the fol- lowing actions: (a) Review the offer file for completeness... (3) All remaining offers will be subject to initial review in SPf prior to assignment for field investigation. SPf may recommend summary rejection of any offer determined to be frivolous, intended to delay collection, a potential fraud case, where there is no basis for compromise, or the taxpayer refuses to submit a complete Form 433 (See IRM 57(T1I0)7.1) (Empnasis added) 2 Administra- tion, CCH Internal Revenue Manual, paras. 57(10)6.32 and 67.331, Special Procedures at 1337. 57(10)7 Investigation of Offers YES ep yee! General (1) Once an offer in comvro- mise. i8 frecéiveac in Special Procedures function, a ceter-- mination whether the offer merits further consideration must be made. SPf should use all information contained in the offer file and may consult with the revenue officer assignec the TDAs to obtain additional financial informa- ~ or .. tion or verify existing infor- mation. (2) Summary rejection in SPf can be made on the grounds that the offer is frivolous, was filed merely to delay collec- tion, or where there is no basis for compromise. Although not all inclusive, the fol- lowing list provides guidelines on tne criteria for summary rejection most often encoun- TEFEds wc0 (d) The taxpayer refuses to submit a complete financial statement (Form 433)... (3) When SPf determines that the offer should be summarily rejected, the procedures in IRM 57(10)(13).2(4) will be fol- lowed in preparing Form 1271, Rejection or Withdrawal Memor- andum... (5) Since an initial review of the offer ‘in compromise has been made by SPf (varagraph (2) above), an offer received by the field examining officer will, in most -cases, merit further consideration. Form 656, Form 433, if it applies, and all related documents should be reviewed to determine 4 course of action and a basis for an acceptable offer prior to meeting witn the taxpayer. (Emphasis added) e2 Administra- ao 26 se tion, CCH Internal Revenue Man- ual, para. 57(10)7.1, Special Procedures at 7339, 57(10)7.51 Determination of Adequate Offer %* & (2) The investigation of offers based on inability to pay requires comprehensive analysis by the examining officer to ascertain the tax payers ability to pay:... (mm phasis added) > Administration, CCH Internal Revenue Manual, para. 57(10)7.51, Collection ACtIiVity at 73h, 57(10)7.521 Svecial Procedures Function Investigation (1) All offers with total tax liability below $10,000 ini- tially will be assigned to SPf for investigation...information contained on Form 433-f ana verified by a revenue officer would normally be sufficient ror Of7er in compromise pur- oses (tax liability under 910,000), if it appears that the taxpayer's financial cone dition has not changed appreci- ablv. - 29 - (4) Since Form 433 will be the primary source of financial information for this examina- CLoOn: offer investigations snould be completed as soon as possidle to ensure tnat_ the financial statement refiects the taxpayer's current finan- cial condition. Before recom- mending acceptance, the exam- ining officers will review the taxpayer's latest income tax return to verify that the assets and liabilities listed on Form 433 are complete and accurate, STC1LOF7. See Field Investigation (1) Offers with total tax liabilities $10,000 or more will be assirened to the field examining officer. Before arranging an appointment with the taxpayer for a thorough examination of the offer, the field examining officer should make a comprehensive review of the offer, the financial state- ment and all other information in the file...Assets or liabil- ities appearing on a financial statement or other record sup- plied by the taxpayer should be verified in writing or in person by the examining of- ficer. » 30 « (5) Offer investigatiors should be completed aS promptiy as possible. Before an offer is recommended for acceptance, the examining official will review the taxpayer's latest income tax return (1040, 1120, etc.) for any assets oor sources of income not listed on the Form 433. = = ¢ (7) The taxpayer's financial statement should be verified to ensure that it reflects’ the current financial position of the taxpayer. Courtesy inves- tigations should be initiated whenever necessary to verify information. An updated Form 433 will not be necessary during the offer examination... (Emphasis added) e2 Administra- tion, CCH Internal Revenue Man- waa. peras. $7(1037.5el and 7.522, Special Procedures at 7343-7345. It is interesting to note that under the IRS Manual procedural rules, even a proposal to compromise the balance of an accepted offer, when based on doubt as to ~ Si = collectibility, must be submitted with a complete Form 433 even though no offer form (such as Form 656) is prescribed for use in submitting such a proposal. See 2 Administration, CCH IRS Manual, para. 57(10)(23).73, Collection Activity, at 7388. Attached hereto in the Appendix pages 70 and 73, are sample rejection letters contained in the IRS Manual which support Petitioners position that the Offer herein should have been immediately rejected by letter as not containing sufficient information to enable the IRS to determine its adequacy as it was not legally acceptable as submitted. Finally, under general contract law and according to the Michigan Supreme Court in Bitulithic Paving Co. v Highland Park, 164 Mich 223, 228 (1910): ae | ae ---But a contract is not made so long as, in the contempla- tion of the parties thereto, something remains to be done to establish contract relations. The law does not make a con- tract when the parties intend none, nor does it regard an arrangement as completed which the parties thereto regard as incomplete. The IRS in the case at bar accepted and received the benefit of the waiver of the statute knowing full well the offer as Suomittec was not ovrocessable as containing a significant omission be@e, Mrs. Holloway's signature on Form 433, which was clearly in violation of their Own procedural mandates and not in ac- cordance with rerular practice. The IRS did not act in due course as that term is defined by the Sixth Circuit and the caselaw below. WHEREFORE, Petitioners Lawrence M,. anc Roena J. Eolloway pray this Honorable Court g¢rant this Petition for Certiorari as Taxpayers' Offer In Compromise was not acted upon in “due course" or in accor- dance with the regular vractice and pro- cedure of the IRS. Resvectfully submitted, ee / ROBERT J. SOLNER (P20771) ls SOLNER & SOLNER, P.C., Attorneys for Defendants/ Avpellants 20300 Telegraph Rd., Ste. 177 Rirmingham, Michigan 48010 (313) 647-8650 RECOMMENDED FOR FULL TEAT PUBLICATION See, Sixth Circuit Rule 24 No. 85-1128 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Unrtep States OF AMERICA, ) Plaintif-Appellee, | Ox Appear from the v. United States District LAWRENCE M. HOLLOWAY; ROENA Court for the Eastern J. Howwoway, District of Michigan. Defendants-Appellants. Decided and Filed August 18, 1986 Before: LIVELY, Chief Judge; KENNEDY and MILBURN, Circuit Judges. PER CURIAM. The defendants, husband and wife, appcal from an order of the district court granting summary judg- ment to the United States and reducing to judgment certain income tax assessments. The Tax Court determined deficicn- cies in the defendants’ income tax returns for the years 1950 to 1957 and 1960. This determination was made on October 30, 1964. On June 18, 1965 the defendants submitted an offer in compromise, which both of them signed, to satisfy all out- standing liabilities. A statement of financial condition, signed only by Lawrence M. Holloway, was submitted with the offer and showed his total assets to be about $4,400 and his liabili- - 35 - ties at approximately $240,000. The printed offer of compro- mise form contained the following provision: The undersigned proponent waives the benefit of any statute of limitations applicable to the assess- ment and/or collection of the liability sought to be compromised, and agrees to the suspension of the . funning of the statutory period of limitations on assessment and/or collection for the period during which this offer is pending, or of the period during which any installment remains unpaid, and for | year thereafter. On February 3, 1966 the Internal Revenue Service (IRS) assigned the defendants’ offer to special agents for investiga- tion of possible fraud and on October 18, 1968 the matter was referred to the Department of Justice for consideration of instituting criminal proceedings. The taxpayers were indicted on May 20, 1970 for knowingly and willfully filing a false statement of financial condition and other informa- _ tion. The district court dismissed these charges for pre- indictment delay and thereafter the defendants’ offer of com- promise was returned to the IRS collection division. On June 12, 1972 the IRS notified the defendants that the offer could nat be processed unti] an updated statement of financial con- dition was received. When the defendants failed to provide further information the IRS formally rejected the offer of compromise on February 14, 1973. On September 20, 1976 the government filed this action to reduce to judgment the original 1964 tax assessments. Following an evidentiary hear- ing the district court determined that the government had proceeded in due course in considering the defendants’ 1965 offer and granted summary judgment for the United States. Fite issue on appeal is whether the government filed this actidirwithia-thetimitations period. In United States v. Ress- ler, $76 F.2d 650, 652 (Sth Cir. 1978), the court stated: The running of the statutory period is suspended until the offer of compromise is terminated, with- - 36 - drawn, or formally rejected. See Afyrick v. United States, 296 F.2d 312 (Sth Cir. 1961). In addition, it is suspended for one additional year, as provided by the terms of the offer. The defendants argue that the six-year statute of limita- tions which was tolled by their offer of compromise began to run again when the Internal Revenue Service referred the matter to the Department of Justice for possible criminal pro- ceedings. They argue that this was an implied rejection of the offer of compromise and that no withdrawal by them or formal rejection by the IRS was necessary to start the statute of limitations running again. The Ress/er court dealt with this argument as well, stating: We find no reason why proceedings in a criminal matter should have any effect on whether even a related civil matter can be compromised. There is nothing necessarily inconsistent from the Govern- ment’s standpoint in prosecuting for fraud and still considering an offer of compromise of the civil lia- bility for tax. A prosecuted taxpayer is not left unprotected: if he thinks that his prosecution is inconsistent with the acceptance of his offer of com- promise, he can withdraw the offer upon notice to the Government, and thus terminate the toll on the statute of limitation. Id. wt 652-53. We agree with the analysis of the Fifth Circuit and adopt the reasoning of Ress/er. Thus, the running of the statute of limitations did not begin until the IRS formally rejected the offer of compromise, which the defendants had never with- drawn. The defendants also argue fhat the district court erred in finding that the IRS considered their offer of compromise in due course. As the court held in United States v. Cooper- Smith, 310 F. Supp. 479, 482 (E.D. N.Y. 1970), afd, 439 - 37 - F.2d 1095 (2d Cir. 1971), “ ‘Due course’ depends on the regu- lar practice and procedure of the Government.” The defen- dants had the burden of demonstrating that their offer of compromise was not acted upon in accordance with the regu- lar practice and procedure of the IRS in order to prevail on this contention. They made no showing to support such a finding. The judgment of the district court is affirmed. - 36 - APPENDIX B United States District Court for the Eastern District of Michigan, Southern Division, Flint No: 76-72023 UNITED STATES OF AMERICA, Plaintiff Vv LAWRENCE M. and ROENA J. HOLLOWAY, Defendants MEMORANDUM OPINION AND ORDER Plaintiff failed this action on Sep- tember 30, 1976, to reduce a tax assess- ment to judgment. Both parties thereafter filed Motions for Summary Judement which the Court denied in a written opinion dated May 12, 1980. Before the Court is plaintiff's renewed motion for summary judgment. The only issue which must be adjudicated is whether plaintiff processed defendants' offer of compromise in due course. If plaintiff did so, the limitations period would be tolled and summary judgment on behalf of the plaintiff would be appro- priate. If not, then plaintiff effec- tively rejected the offer at some point prior to the Febdruary 1973 official rejection thereby creating the possibil- ity that some or all of its claims are timebarred. (See p 3 of this Court's May 12, 1980 opinion.) If such is found to be the case, plaintiff's renewed motion must be denied. ANALYSIS As was the case at the time of the Court's 1980 opinion, there is but one reported case dealing with the "due course" language of an offer to compro- mise a tax liability. In U.S. v Cooper- Smith, 310 F Supp 479 (ED NY, 1970) aff'd 439 F2d 1095 (CA 2, 1971), the Court in « &O « defining "due course" stated: "Due course" depends upon the regular practice and procedure of the Government. There is no showing here that this offer was not considered and acted upon in accordance with the Government's regular practice and procedure in cases of this kinc. Moreover, at would appear that in order to sustain the defendant's argument, some prejudicial connection would have to be shown between the alleged default and the enforcement of the waiver provision. Id at 482. In the instant case, defendants sub- mitted their offer in compromise on July 18, 1965. In February, 1966, the offer in compromise was referred to the Intel- ligence Division because of the possible existence of criminally fraudulent state- ments. The criminal asvect of the case continued until the February 21, 1972 dismissal of the appeal taken from the “> a trial court's decision dismissing the indictment. Subsequently, the offer was fully considered and officially rejected on February 14, 1973. Since the offer was held in abeyance during the 6-year pendency of the criminal action, plain- tiff took only about 1 1/2 years to actually consider the offer. Given the time needed to update the offer following the close of the criminal action and the press of other matters the review seems to have been accomplished in "due course." As to holding the offer in abeyance pending the criminal action, it must be noted that since this was done in accord- ance with established pvrocedure, it must therefore have been done in "due 1 ; : course." The criminal investigation T Relving on US °weRessler, 576 Fed 650 (CA 5, 1978), defendants argue that the compromise of the civil matter should not x BD « also was accomplished in "due course." While it is true that the fieldwork took over two years, the work was done in accorcance with a set procedure in which cases were given priority in accordance with their resvective statute of limita- tions date. Since the delay was caused by an established procedure developed vu because of manpower shortages in the field office, the two-year investigation must be considered to have proceeded in "due course." The same can be said for the two- year delay produced by a procedure iden- have been held in abeyance since it would not have been affected by the outcome of the criminal investigation. Defendants conclude that a sanction could not, therefore, have been performed in "due course." This argument misses the mark. FiPOt it ignores the Cooper-Smith definition of "due course." Second, its underlying premise is mistaken. Surely, fraudulent statements concerning the value of the taxpayer's assets may affect the decision to accept or reject the offer in compromise. ie tical to that used by the IRS tieic office in handing down the indictment once the matter was referred to the Department of Justice. As Willard McBride, an attorney for the Criminal Section of the tax Division of the Department of Justice testified, cases were given priority according to the statute of limitations date. Since the statute in defendants' case would not run for some time, it was given a low priority, hence the two-year delay. The remainder of the criminal action took only two years to complete and thus there anvears to be no “due course” issue oresent for this period of time. Clearly then, although it took plaintiff a considerable time to review and ultimately reject defendants' offer in compromise, plaintiff nevertheless es proceeded in “due course." Since the first prong of the Cooper-Smith test is not met, the Court will not consider whether the delay resulted in prejudice to the defendants. In light of the evidence produced at the evidentiary hearing it is clear that no _ genuine issues of fact exist in the present action and that plaintiff is entitled to dudgment as a matter of law. Summary judgement must therefore be granted to the sor the reasons set forth above, rlaintiffs motion for summary judgment is nerebdy granted. Judgment shall be entered accordingly. IT IS SO-ORDERED. Dated: 1/11/85 /s/STEWART A. NEWBLATT United States District Judge i AS x APPENDIX C United States District Court for the Eastern District of Michigan, Southern Division No: 76=-72023 UNITED STATES OF AMERICA, Plaintiff, LAWRENCE M. and ROENA J. HOLLOWAY, Defendants. MEMORANDUM OPINION AND ORDER At a session of said Court, held in the Federal Building, Flint, Michigan, on May le, 198¢. PRESENT: HON STEWART A NEWBLATT United States District Judge Plaintiff filed this action on September 20, 1976, to reduce a tax 5 ae assessment to judgment. Defendant raises the Statute of Limitations as a defense. Both parties have filed Motions for Summary Judgment. On October 30, 1964, the Tax Court assessed income taxes for Defendants for the years 1950-57 and 1060-62. On June 18, 1965, Defendants submitted an offer of compromise to the Internal Revenue Service (I.R.S.). On February 3, 1966, a snecial agent of tne I.R.S. befan inves- tigatins the possibility that the offer contained fraudulent statements. On June 18, 1968, the case was referred to the Justice Department because of the susnected fraud. An indictment was handed down on May 20, 1°70, and dismis- sed on December 16, 1971. The. US, appealea the dismissal, which appeal was itself dismissed on February 21, 1972. i By letter dated February 14, 1973, the offer was formally rejected. Both parties agree that the applic- able period of the Statute of Limitations is six (6) years. The parties further agree that the Statute is tolled while the I.R.S. considers an offer of compro- mise plus one additional year, a period that began in this case on June 18, 1965. The government argues that the tolling ends when the offer is specifically rejected. Alternatively, the government surrests that even if one were to agree with the holding of Coy v U.S., 377 F 2d 925 (9th Cir 1967), the offer would remain onen until indictment. In either event, the complaint would have been timely filed, the limitations period having expired on June 25, 1979 under the first theory and on October 1, 1976 under - 48 « the latter. Defendants maintain that the tolling period ended when the matter was referred to the Justice Department. It is on this theory that Defendants base their Motion for Summary Judgment. Alternatively, Defendants argue that Summary Judement in favor of Plaintiff is not aporopriate, as there are unresolved factyal issues. There is no case law to support Defendants’ contention that the offer was rejected when the auestion of fraudulent Statements made in an offer of compromise lead to an indictment for fraud, the offer is deemed rejected at least on the day of sentencing, and possibly on the day of indictment. The Court reasoned that the government could not ethically proceed on an offer based or fraud, and thus the offer was deemed rejected once fraud was established. That theory, though well reasoned, does not benefit Defendants here, as the complaint was filed one day prior to the exviration of the Statute of Limitations as established thereby. See also, U.S. v. Coover-Smith, 310 F Supp 779 (ED NY, 1970) aff'd with opinion, 439 F 2d 1095 (2d Cir 1971) (offer not rejected until taxpayer officially notified of the same, despite full payment of offer of compromise); essler, 576 F 2d 650 (5th Cir 1978) (Criminal charge is separate from civil complaint, and therefore filing of indictment does not mean rejection of offer). As stated above, Defendants assert alternatively, that Summary Judgement is not appropriate, due to the existence of factual disputes. Of those alleged, the Court is persuaded that . genuine issue exists as to whether or not the govern- ment proceeded in due course in consider- ing the offer of compromise, as required by the contract. Although the govern- ment argues that such a finding is not relevant, this Court agrees with Defen- dants' contention that failure to proceed in due course would, at some point, be the equivalent of rejecting the offer in comnpromise. Such a concept is basic contract law, and the Court can think of no reason the principle should not apply here. This Court is aware of no statute, 2 Paragraph 7 of the offer in compro- mise, signed by both parties, states in relevant part: "It is understood that this offer will be considered and acted upon in due course..." See, exhibit C attached to Affidavit of John DiCicco. a §1 «= regulation, or policy consideration which would mandate that an offer of compromise remains valid indefinitely regardless of how much time passed. In fact, in a case cited by the government, U.S. v. Cooper- Smith, supra, id, the lower Court noted that if the Defendants made a prima facie case of lack of diligence and showed some prejudice, they had raised a valid defense to the collection attempt. The passage of eleven (11) years from the offer of compromise to the filing of the complaint is in the opinion of this Court, a sufficient prima facie case. It takes little imagination to believe Defendants may have be prejudiced by such a celay. The record is insufficient, however, to dismiss the claim because of the delay. Therefore, the matter is set for s 69 « an evidentiary hearing on the 13th day of June, 1980, at 3:30 P.M. In light of the fact that the delay appears to have been caused by the government, that the reasons for the delay are better known to the rovernment than to the Defendants, and the record already established a prima facie case in favor of Defendants, it is the Court's present opinion that the burden should rest with the govern- ment to show that the delay was reason- able. Once that was established, Defen- Gants would have the burden as to prej- udice. Counsel may submit any motions, briefs or other material they wish the Court to consider by June 6, 1980, For the above reasons, Defendants' Motion for Summary Judgement is also denied, but without prejudice and may be raised again following the above = 53 « scheduled hearing. IT IS SO ORDERED. Dated: 5/12/80 /s/ STEWART A. NEWBLATT United States District Judge « = APPENDIX E United States District Court for the Eastern District of Michigan, Southern Division, Flint Criminal Action No: 44984 UNITED STATES OF AMERICA, Plaintiff, Vv. LAWRENCE M. and ROENA J. HOLLOWAY, Defendants. Tne defendants in this case are chargead in the indictment with violation of Section 7206(1), Title 26, United States Code, in two counts. In the first count the two defendants are charged with having submitted a false Offer in Compro- mise to nav back income taxes; in the seconcd count the defendant Lawrence M. Holloway is charged with having submitted a false statement of Financial Condition and Other Information. Defencants have moved to dismiss the - 55 - indictment. We consider the motion against the chronological history of the defendants' income tax involvement with the government. The defendant Lawrence M. Holloway was indicted by the government in 1961 for income tax evasion. He pleaded puilty and was placed on two years pro- bation and fined $10,000.00. Thereafter, civil proceedings were instituted by the government to collect back taxes anda interest. These latter proceedings culminated in a decision of liability for more than one hundred twenty-five thou- sand dollars. Holloway was at that time geevly involved in the affairs of the Owosso Finance Company, which went under and was sold at a great loss in 1964. For many years Holloway's attorney was Mr. Francis George of Flint, Michigan. - 56 - During Holloway's struggles to save his finance comnanyv, he fired a manager for mismanagement and replaced him with Mr. Rolandc A. Bourdon. Beginning some time in 1965 the taxpayer and the government attempted to work out some Kind of settlement on the tax liability, as it was obvious to both that he was in fact unable to pay the full assessment. In June 1965, the currently involved Offer in Compromise and Statement of Financial Condition and Information were filed, the defendants offering to pay ten thousand dollars in settlement. It was upon these documents that this prosecution was instituted. The vital issue with respect to both documents is whether there was in fact falsification by the defendants of their financial condition and the defendant - 57 - Lawrence Holloway's physical condition; the government charging that, whereas Lawrence Holloway claimed the ownership of assets having a fair market value of $4,400.00, he in fact had, and knew he had, additional assets having a fair mar- ket value of $24,426.30. From Lawrence Hollaway's affidavit it is clear that he claims that some $23,000.00 of “— difference between his and the government views concerning the extent of his assets could have been explained by his long-time attorney, Mr. George, and by the finance company manager, Mr. Roland A. Bourdon; and that, were their testimony now available to him, he could establish that the alleged and disputed assets were not his but belonged to his wife, his children and to Mr. George (as an attorney fee); and that - 58 - if Dr. Elbert Dean Elsea, now deceased, were available as a witness, he would Support his contention that his health was diarnosed by the doctor as rendering it unwise for him to continue in the practice of medicine. It should be noted that Dr. Elbert Dean Flsea died September 7 1967, Roland A. Bourdon died June 10, 1968; and Francis George died meres 22. I97TO, The documents were filed June 4, 1965, The government then investigated the Offer for a time and on March 26, 1968 the defendants were informed that the fovernment was considerinc bringing criminal charges based upon the Offer. Later the case was referred to the Denartment of Justice, and on May 20, 1970, the present indictment was returnea. -~ 59 - The defendants say that the delay was unconscionable and that they have been irreparably prejudiced in the pre- sentation of a defense, and that accord- ingly the indictment should be dismissed. Generally, the Court of Appeals for the Sixth Circuit has held (see, Hoopen- garner v. U.S., 270 F.2d 465, and cases in the Sixth Circuit following it) that the right to a speedy trial under the Fifth Amendment to the United States Constitution applies only after formal charges are lodged, and that the statute of limitations governs thereafter. We are satisfied, however, that pre-indict- ment delay, under the circumstances of this case, where there is a_e serious impairment of the accused's ability to present a defense, raises a constitu- tional issue under the Amendment. Our a 60 Own court has sustained a motion to dismiss under like circumstances. See U.S. v. Haulman, 288 F. Supp. 775 (1968). We are persuaded that that case was properly decided and that the grounds in Support of the motion in this case are perhaps stronger, in terms of prejudice to the presentation of a defense, than in Haulman. The motion to dismiss the indictment is granted. IT IS SO ORDERED. December 16, 1971. /s/ STEPHEN J. ROTH United States District Judgre - §1 « APPENDIX F United States District Court for the Eastern District of Michigan, Southern Division Civil Action No: 76-40149 UNITED STATES OF AMERICA, Plaintiff, Ve LAWRENCE M. and ROENA J. HOLLOWAY, Defendants. JUDGMEN This action came on for hearing before the Court, Honorable Stewart A. Newblatt, District Judge, presiding, and the issues having been duly heard and a decision having been duly rendered, IT IS ORDERED AND ADJUDGED that judgment be exvered for the plaintiff, United States of America, and this action is hereby dismissed. Dated: January 1l, 1985 ROBERT A. MOSSING, CLERK By: /s/ Ruth A. Jozwiak, Deputy Clerk « 63 « ar | O Robert W. Haviland AUSA 600 Church Street Flint, MI 48502 Robert J. Solner 6735 Telegraph Road Suite 100 Birmingham, MI 4808 APPENDIX G Unites States Court of Appeals for the Sixth Circuit NO. 85-1128 UNITED STATES OF AMERICA, Plaintiff/ Appellee, Ve LAWRENCE M. and ROENA J. HOLLOWAY, Defendants/Appellants. ORDER [Filed September 15, 1986] BEFORE: LIVELY, Chief Judge; KENNEDY and MILBURN, Circuit Judges. Upon receipt and consideration of the petition for rehearing filed herein by the defendants-anpellants, the court concludes that it did not overlook or misverceive any of the issues raised in this appeal. Accordingly, the petition for rehearing is cenied. ENTERED BY ORDER OF THE COURT /s/ Jonn P. Hehman, Clerk/AS - 64 - APPENDIX H 366 7-86 Special Procedure 7507 Exhibit 5700-10 Form 656 Checklist (Reference: IRM 57(10)2.1) CHECKLIST FOR FoRM 656 Is the taxpayer's full name, address, Social Security Number, and/or Emplover's identification Number com- plete? 57(10)2,22 Is the offer dated in the Space pro- vided? 57(10)2,22 Is the liability being compromised accurately and completely describea (not abbreviated) including the period of tax involvead? 57(10)2.24 2. income tax, plus Statutory addi- tions, for the calendar year 1982, 4. b. Withholding and Federal Insurance Contributions Act taxes, plus statutory additions, for the quarters ending ° c. (Tyve of excise tax) plus statu- tory additions, for the period ending ° d. A 100 percent penalty assessment, plus statutory additions incurred as a responsible officer or employee of the XYZ Corporation for failure to pay withholding and Federal Insurance Contribu- tion Act taxes* for the quarterly periods ending 12/31/xx, etc. Is the amount offered entered in the space provided? 57(10)2.25 a. If the total offered is paid at the time the offer is filed, no = 66 a other entry is required. b. If the offer is a deferred pay- ment offer is the following information included in the terms of payment? 1. the amount deposited with the offer 2. the amount of each deferred payment 3. the date on which each pay- ment is to be made. Is the reason for submitting the offer stated in item 7 of Form 656? 57(10)2.27 (There are only two, doubt as to liability, and doubt as to collectibility.) Is Form 433 attached for offers based on doubt as to collectibility? Is the offer signed by taxpayer (Individual)? 57(10)2.28(1) - 67 - 10. Lika If a joint liability, is the offer signed by all parties to the assess- ment? (If not, must secure a co-obligator agreement) 57(10)5.3 If taxpayer is a corporation, is it signed in the corporation name by the president or other autnorized officer? 57(10)2.28(1) Has the waiver section on the offer been executed by a delegated Internal Revenue employee and the date in- serted? 57(10)4 '4 ry se) J 4?) w oO Oo — Ww ible officer of a corpor- corporation and also is filing it in lieu of having the 100% penalty assessed against him/her, is the offer signed on behalf of the corvor- ' > i 7 : Sear2 A | We +) yell as individually by the resvon- 2 Sidi€ officer. 57(10)9.741 MT 5700-5 Revenue Manual - Administration APPENDIX I 246 2-86 Special Procedures tie ee Exnibit 5700-36 Pattern Letter P-238 (Reference: IRM 57(10)(13).4:(2)(a)) PEJECTION LETTER-OFFER TO COMPROMISE TAX AND 100 PERCENT PENALTY LIABILITIES (Use appropriate letterhead) [Salutation] This refers to your offer of ${amount], submitted to compromise [kind of liability] for the tax period(s) vear(s) or period(s) ending. We are sorry, but your offer is . reiected because the tax is held to be lefsally due and an amount larger than the offer apnpvears to be collectible. Wwe do not have authority to accept an offer in these circumstances. We must therefore ask you to pay ee en your account in full as soon as possible. If you have any questions, please contact [name], Internal Revenue Service, (address, telephone number]. Sincerelv, yours, Sienature and title [When apprcpriate, substitute one of the following for the second paragraph: ] Sov OD a) ry 4) sorry, but your offer is rejected because you have not fur- nished sufficient information to en2ble us to determine its adequacy. . We are sorry, but your offer is rejected. Our action is based on what we consider to be the _ best interests of the Government. 3. Employment tax cases only. We are sorrv, but your offer is rejected as insufficient since it is not our eS oe —1 Y) -4 t — policy to give favorable considera- tion to an offer to compromise employment taxes unless’ the amount offered is equal to the unpaid tax (exclusive of penalty and interest) and the taxpayer's financial condi- tion indicates no greater amount is collectible. [This reason for rejec- tion is applicable only when taxpayer submitting ne offer is still in the same business, i.e., the same legal entity, as when the liability sought to be comvromised was incurred. ] MT 5700-1 rnal Revenue Manual —- Administration APPENDIX J 75324 Part V - Collection 346 2-86 Activity Exhibit 5700-37 Pattern Letter P-679 (Reference: IRM 57(10)(13).42) REJECTION LETTER-Pro Forma Rejection of Offer when the Taxpayer Dies During Con- Sideration. (Use appropriate letterheza) [Salutation](See land 2 below) This refers to the offer submitting to compromise the [kind of liability] of [name of taxpayer(s)] for [year(s) or periods ending]. We are sorry, but we must reject this offer. It would not be legally acceptable as submitted because [name of deceased taxpayer] is now deceased. In order for an offer on behalf of - 73 - this taxpayer to be considered a new Form 656 must be filed showing [name] as deceased. ’ If you have any questions, please contact [name], Internal Revenue Service, at address and telephone number. Sincerely yours, [Signature and title] 1. [To The Estate of if a single tax- paver. |] 2. [To the surviving spouse if a joint liability. | MT 5700-1 Commerce Clearing House, Inc. - 7 « --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1962%3A1. Public record. Not legal advice.