Petition for Writ of Certiorari — Flynn v. Commissioner

85 - 149! stron «

: 5 -

FILED

_— MAR 8 i926

JOSEPH P. SPANIOL, UR.

ng CLERK

IN THE

—m =

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

DONALD EDWARD FLYNN,

Petitioner,

versus

COMMISSIONER OF INTERNAL REVENUE,

Respondent,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIATH CIRCUIT

Petition for Writ of Certiorari

DONALD EDWARD FLYNN

Petitioner in Propria Persona

5410 Orcnard

Dearborn, Michigan 48126

(313) 582-8957

i

QUESTIONS PRESENTED FOR RE*’TEW

Ae Whether the Tax Court erred and

abused its discretion when it failed to

look to Petitioner's 1040 Tax Return which

was admitted into evidence; and if the sig-

nature of taxpayer under penalty of perjury

constituted valid testimony pursuant to

Rule 803(6) of Federal Rules of Evidence

and Rule 143(a) of Rules of Practice of

the United States Tax Court, constitutes

prima facia evidence and a violation of

the Court to fulfill the “due process"

guarantees of the Fifth Amendment.

2. Wnether the Tax Court abused its

discretion in awarding damages to the Gov-

ernment under 26 U.S.C. 6673 when taxpayer

petitioned Tax Court in good taith, pursuant

to instructions of the Internal Revenue

Deficiency Notice constitutes a violation

of the Court to meet the "due process" guaran-

tees of the Fifth Amendment.

ii

3. Whether the United States Government

through the Department of Treasury instituted

descriminatory practices and procedures

against individual church organizations

by use of the taxing power to turnish support

for "“approved" religion constituted a viola-

tion of the "right to religious freedom"

and the “Establishment Clause” claim of

the FIRST AMENDMENT by the United States

Constitution and 26 J.S.C. Secs. 6673?

PRE ee

1ii

LIST OF INTERESTED PARTIES

DONALD EDWARD FLYNN appearing in Propria

Persona certifies that the following parties

have

case.

an

L.

interest in the outcome of this

United States of America, represented

by GLENN L. ARCHER, JR., Assistant

Attorney General, MICHAEL L. PAUP,

RICHARD W. PERKINS, and THOMAS

A . GICK, Attorneys for Tax Division,

Department of Justice, Washington,

Db. C. 20530

Commissioner of the Internal Revenue,

Department of the Treasury, 15th

Street and Pennsylavania Avenue,

N.W., Washington, D.C. 20220.

lv

TABLE OF CONTENTS

Questions Presented for Review...... eo

Liet of Interested POCtiaes sss ccc ccs aewe

TADLS OF CONTORES: ceccccvcveessesve cee use

TODLG OF AGEHOFECiGSs cc cece asec dedawces

Opinions Below........ Cr hanes een ws eaten ee

JUFIOGLCtION GE CHLE COUEEs «os occces cece

Constitutional Provisions and

Statutes Involved in the Case........ ‘

Statement Of the CASE. .ccccccscesseveser

Reasons for Granting the Writ..... ‘ences

Conclusion..... verre TWEETER ETILI CTL eT

Proof of Service-Certificate of Pro Per.

RODEGRGLE Asaesncevevses oeeeeotseeveve” eens

RONGER By ccc ccs stecenen err Tee Tr ree re ee

Vv

TABLE OF AUTHORITIES

CASE PAGE

Bridger v Union Raiiway Co., 355 F.2d

362, 392 (6th Cig. 1L9G6) 0 ccc cterenvesssd’ il

Bubbling “eli Church of Universal Love, Inc.,

vy Commi eeioner, 74 TiC. ZFS URGOS) ccicecseas 20

Busey v District of Coiumbia, 1943, 138

F2d 592, 78 US App DC 189, conforming to

mandate 63 -§.Ct. i277, 319 US S73, 67 &

et. Pere eee ee re er ee ee ee re ee eee 23

Everson v Board of Ed. of. Ewing Tp., NJ 1947,

67 s.Ct. 504, 330 US 1, 91 L Ed 711, 168

ALR 1392, rehearing denied 67 S Ct 962,

330 US 655, 91 b Bd L257 cic ki tivsa seinen es 14

Dejong v Comm., 36 T.C. 896, 899 (1961),

atft*d 309 F.2d 373 (9th Cir. (SPR 2 cs ws ieas 12

Fausner v Comm. 55 T.C. 620, 642 (1971...... 12

Fellowship of Humanity v Alameda _ County,

315 P2d 394, 153 CA 24 G73 (1957 ec ccccavecne 23

v1

CASE PAGE

Lawson v Commonwealth, , 164 S.W.2d 972,

SOL RY. 437 CLPEZ) we cccncneeivescnsenvecccess 23

United States v Lee, 455 U.S. 252

o' Si PPePEPEPEREREPETEEEEEETereee TT 19,20,21

Lemon v Kurtzman, 403 U.S. 602 (1971)...... 17

United States v Moon, 718 F.2d 1210

(2a Cir. 1983), cert. den., 104 S.Ct. 2344

CAGE) ow wwe cere cesar eeesceaneerensesenenere 15

People of State of Ill. ex rel. McCollum v

Board of Ea. of School Dist. No. 7l,

Champaing County, Ill., Ill. 1948, 68 S.Ct.

461, 333 U.S. 203, 92 L.Ed. 648, 2 A.L.R.

Rockwell v Commissioner, 512 F.2d 882 (9th

Cir.) cert.denied, 423 U.S. 1015 (1975)....13

Snodgrass, a. | brererwrerrre rr ry. ere res 6

Southern Church of Universal Bhd. Assembled,

Inc., v Commissioner, 74 T.C. 1223 (1980)..20

Thomas v Review Board, 450 U.S. 7907

PT ere mee

vil

CASE PAGE

(RRR 66h ae ek ae 8 8s eee 16,19,.20,23

Tudor v Board ot Ed. of Borough of Ruthertord,

1953, luO A.2d 857, 14 N.J. 310, 45 A.L.R.2d

729, cert. den. 75 S.Ct. 25, 348 U.S. 616,

99 Dp BG. GEG. cece creme ssesaveetscensansses 14

Unitary Mission Church of Long Island v

Commiasioner, 74:-7.6.. S67 thee) «see nen secs 20

Walz v Tax Comm'n, 397 U.S. 644, 669

Ol) P PPrerrerererrrrrrerrrreverrerrerrre ere rss cr.

Welch v Helvering, 290 U.S. 111, 115 (1933).12

CONSTITUTIONS

United States Constitution:

Piret AMORGMORE «occ ca we encase ewes sue 3,25

PICth AMONGMENE..ccescccnerreesesensnes 3,43

STATUTES

26 U.S.C. SOC. LIDCE) coccccctccsnsvesneeses 12

26 U.S.C. SOG. GES3 00 csicwtn ctv edsisnd cas cans 8

26 U.S.C. Sec. 6653(a) (1) TUSCPTET OTT eT Cee 4,

26 U.S.C. SEC. 6653(a) (2). cece cc ncccecccvee 4,

viii

CASE PAGE

20 U.S.C. SOC. GEl2. ec cccesecvvcevevesncecnse 7,8,

Be WibiCs BOS. BASEL pace ce cceicvesesvesscves 2

RULES AND ACTS

aus S491), BR. OF PRP. UsB. TOM COUECs occ ccce 13

oS) Be sig. ae ee a, eee ee ee 16

MISCELLANEOUS

D. Kelley, Why Churches Should Not Pay Taxes,

Ye) see erererrr rere reer ee reEeE TEE TeL TT eee 16

Constitutional Law: The Religion Clauses --

A Free Rein to Free Exercise?, il Stetson

SeROV. JOG, BGG CLPSYN occ vonewesesersedssaeees ry

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

DONALD EDWARD FLYNN,

Petitioner,

versus

COMMISSIONER OF INTERNAL REVENUE,

Respondent,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

2

OPINIONS BELOW

The Opinion and judgment of the Court

ot Appeals, affirming the Tax Court's Judgment

against the Petitioner appears in Appendix

A to this petition. This decision is not

reported. The Opinion and Order of the

Tax Court appears in Appendix B. This Opinion

is not reported.

JURISDICTION

The Sixth Circuit's Opinion and Judgment

affirming the U.S. Tax Court's Judgment

against the Petitioner, dated and entered

December 9, 1985, is set forth in Appendix

A. This Petition for Certiorari is being

tiled within ninety (90) days of entry of

said judgment. Tne jurisdiction of this

Court is invoked pursuant to 28 U.S.C. 1254

$F

3

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THIS CASE

l. First Amendment to the Constitution

of the United States Amendment I (1791).

Congress shall make no law respecting

an establishment of religion, or prohibiting

the free exercise thereof; Or abridging

the freedom of speech, or ot the press;

or the right of the people peaceably to

assemble, and to petition the Government

for a redress of grievances.

2. Fifth Amendment to the Constitution

of the United States Amendment V (1791).

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment of

a Grand Jury, except in cases arising in

the lana or naval forces, or in the Militia,

when in actual service in time of War or

public danger; nor shall any person be subject

4

for the same offense to be twice put in

jeopardy of life or limb; nor’ shall be com-

pelled in any criminal case to be a witness

against himself; nor be deprived of life,

liberty, or property, without due process

of law; nor shall private property be taken

for public use, without just compensation.

STATEMENT OF THE CASE

On October 28, 1983, the Commissioner

ot Internal Revenue determined a deticiency

in the federal income taxes of Donald Edward

Flynn for the year 198i in the amount of

$12,114. Tue Commissioner also determined

a negligence penalty under Sections 6653(a)(1)

and 6653(a)(2) of the Internal Revenue Code

of 1954 (26 U.S.C.) in the respective amounts

of $605.70 and 50 percent of the interest

due on $12,114. Tnat on the notice of defi-

ciency it clearly stated that taxpayer should

petition tax court if he disagreed with

the notice.

ae

- ‘

On January 16, 1984, Petitioner filed

a petition in the United States Tax Court

seeking a redetermination of the asserted

deficiency and additions. Once the petition

was filed the Internal Revenue’ resolved

the dispute which established substantial

justification for instituting the action

and the dispute over tax deductions was

resolved in favor of the taxpayer. Petitioner

received a full refund check plus interest

in tne amount of $5,226.88 and Petitioner

filed a motion to withdraw his petition

as the issue was moot. On October 15, 1984,

the Internai Revenue Service objected to

Petitioner's motion to withdraw and the

Tax Court denied Petitioner's Motion to

Withdraw.

On October 18, 1984, a trial was held.

Joint Exhibit 1-A (Petitioner's tax return

6

Signed under penalty of perjury by taxpayer

for the year at issue with an attached copy

of receipt from the local Universal Life

Church) was submitted and admitted by the

Tax Court. During the course ot trail Peti-

tioner introduced a witness who prepared

his tax return (H & R Biock) and she testified

that in her professional opinion Petitioner's

tax return was correct. The Trial Court

also made certain remarks to Petitioner's

witness of Petitioner's church concerning

procedures and alluded to his church as

a “purported Universal Life Church" and

suggested that the witness read the Snodgrass

case, a 1984 opinion of the United States

Tax Court, which was unrelated to Petitioner.

On November 19, 1984, the Tax Court

(Judge Swift) entered its order or dismissal

and decision which determined a deficiency

of $11,VU01 and additions to tax under Internal

»

Revenue Code Sections 6653(a)(1) and 6653(a)

(2) in the respective amounts of $550.05

and 50 percent of the interest due on the

$11,001 deficiency. The Tax Court also

awarded the Government damages in the amount

of $500 pursuant to Section 6673 of the

Internal Revenue Code for bringing a frivolous

lawsuit disregarding the fact that Petitioner

had a valid dispute and that the dispute

was settled by the Internal Revenue in his

tavor after he had petitioned Tax Court.

Petitioner, Donald E. Fiynn, appealed

to the United States Sixth Circuit Court

of Appeals on December 19, 1984, by filing

a timely notice of appeal, on the basis

that the Tax Court abused its discretion

in awarding damages to the Government under

26 U.S.C. 6673; that the standards employed

for tne disallowance of Petitioner's charitable

contribution to the Universal Life Church

8

of Mcdesto, California, violated tne Estab-

lishment Clause of the First Amendment;

and that the Tax Court erred in affirming

(with minor modification) the Commissioner's

determination of deficiency and additions

to tax under 26 U.6:C: 6652. Tne Sixth

Circuit Court of Appeals affirmed the Tax

Court Judgment. The appellate court found

that the "“petitioner“” failed to produce

competent evidence and that he nad in fact

made the contribution pursuant to 803(6),

Federal Rules of Evidence. Further, that

because of that failure to produce evidence

in support of his position (despite the

fact that Petitioner's 1040 Tax Return signed

under penalty of perjury with an attached

Supporting receipt of charitable deduction

had been admitted into evidence) Petitioner's

assertion was "groundiess" under Section

6673 and the Tax Court did not abuse its

9

discretion in assessing damages. And finally,

that Petitioner's claim that the Government

violated the establishment Clause of the

First Amendment in disallowing his charitable

contributions deduction by favoring other

churches over his church is’ premised on

the fact that the donation claimed on his

return was not proved that he in fact made

any such donation. The court erred in fail-

ing to look to the fact that the Petitioner

had filed his 1046 Income Tax Return for

the year in question under penalty of perjury

and that said tax return had a local receipt

attached by a iocal chapter of the Universal

Life Church and was indeed submitted and

admitted into evidence before the Tax Court.

Petitioner now seeks relief from this

Honorable Court.

10

REASONS FOR GRANTING WRIT OF CERTIORARI

This case presents the most compelling

reasons tor aliowing the writ. The Sixth

Circuit Court of Appeals and the Tax Court,

contrary to basic judicial procedure, have

based their decisions on:

Se The contention that Petitioner

failed to provide proof of his charitable

contributions to the Universal Life Church

in Modesto, California, waS supported by

the lower court statement, "Weil, I'm not

sure. I'm not sure I understand that excep

tion or that argument.", when in fact the

Respondent introduced into evidence Petition-

er's 1040 Tax Return which was’ signed under

penalty of perjury and had attached to it

a local receipt that was "kept in the course

of a regularly conducted business activity"

which is admissable under Rule 803(6) of

Federal Rules ot Evidence as an exception

1l

to the hearsay rule if supported by the

testimony of the custodian of the records

Or another qualified witness. The Petitioner

was in such a position when he_ signed his

1040 form under penalty of perjury and as

the person who made the donation and his

signature was his testimony, Bridger v

Union Railway Co., 355 F2d 382, 392 (6th

Cir 1966), and the Tax Court in granting

a dismissal and imposing a "“penalty" was

in violation of due process under the Fifth

Amendment to the Constitution as inordinate

and unjustified.

Further, the Tax Court inflicted it's

prejudice against Petitioner's church with

its remarks to Petitioner's witness by refer-

ring to the church stating "Are you aware

that it's in question?...Are you aware of

the procedures of the Universal Life Church

and practices in issuing receipts?..."

12

was violative of The First Amendment’ to

the Constitution. That the Government in

disallowing the deduction has favored other

churches over his church and the courts

show their prejudice against the Universal

Life Church openly in Court.

Section i70(c) ot the Internal Revenue

Code of 1954, defines "charitable contribution

as a gift to or for the use of...(2) A corpo-

ration, trust, or community chest, fund,

or foundation." Tne term "Charitable contri-

bution" as used in section 170 IRC is synony-

mous with the word "gift". Fausner v Comm,

55 T.C. 620, 642 (1971). A gift is a transfer

of property from the owner to another without

consideration. Dejong v Comm. 36 T.C. 896,

899 (1961), aff'd 309 F.2d 373 (9th Cir. 1962).

Once a charitable contribution is made the

taxpayer has the burden of rebutting this

presumption. Welch v Helvering, 290 U.S. lll,

13

115 (1933); Rockwell v Commissioner, 512

F.2d 882 (9th Cir.) cert.denied, 423 U.S. 1015

(1975). In the case before the bar, Petition-

er did produce evidence in support of his

issue pursuant to Rule 149(b), Rules of

Practice of the United States Tax Court,

his 1040 Tax Return, and testified to same

by affixing his signature on said form under

penalty of perjury. Said evidence was admit-

ted into evidence by the Government. Once

admitted the lower court should have looked

to this testimony. Because Petitioner met

his burden ot proof, the burden of proof

shifted to the Respondent therefore the

Tax Court did abuse its discretion in dismiss-

ing his case.

Furthermore, Petitioner asserts that

the United States Government through the

Internal Revenue Service and Tax Court uses

discriminatory practices and procedures

14

by it's use of the taxing power to furnish

Support for "approved" religious organizations

and constitutes a violation of the "right

to religious freedom" ciaim of the First

Amendment ot the Constitution. "The ‘'estab-

lishment of religion' clause of this amend-

ment means that neither a state nor the

Federal government can set up ae_e church,

nor can pass laws which aid one religion,

aid all religions, or prefer one religion

over another. Everson v Board _ ot Ed. of

Ewing Tp., N.J. 1947, 67 S.Ct. 504, 330

U.S. 1, 91 L.Ed. 711, 168 A.L.R. 1392, rehear-

ing denied 67 S.Ct. 962, 330 U.S. 855, 91

L.Ed. 1297; People of State of Ill. ex

rel. McCollum v- Board of Ed. of School Dist.

No. 71, Champaing County, Iil., Iil. 1548,

68 S.Ct. 461, 333 U.S. 203, 92 L.Ed. 648,

2 A.L.R. 2d 1338; Tudor v Board of Ed. of

Borough of Rutherford, 1953, 100 A.2d 857,

14 N.J. 310,

15

45 A.L.R.2d 729, cert. den. 75 S.Ct. 25,

348 U.S. 816, 99 L.Ed. 644. This Honorable

Court has said that religion clause problems

must be decided on a case by case basis:

"Each value judgment...must...turn on whether

particular acts in question are _ intended

to establish or interfere with religious

beliefs and practices or have the effect

of doing so." Walz v Tax Comm'n, 397 U.S. 644,

669 (1970). Petitioner asserts that the

comments of the Tax Court and the obvious

prejudice of the I.R.S. toward his church

interfered with the religious practices

ot the Universal Life Church. That the

comments made by the Tax Court constitutes

a "veto [power] of [a] religious decision,"

and an "anathema to the Religion Clauses."

Petition for Certiorari at 22, United States

v Moon, 718 F.2d 1210 (2d Cir. 1983), cert.

den., 104 S.Ct. 2344 (1984). Focusing on

16

principles of church autonomy, the First

Amendment prevents the I.R.S. and the Tax

Court from second-guessing the religious

intent of donor church members.

In broad terms, Petitioner poses two

guestions: 1) who decides what activities

constitute legitimate religious uses --

the I.R.S. or the particular church, and

2) does it violate traditional notions of

free exercise protection to allow the I.R.S.

to decide?

Tne First Amendment proclaims: “Congress

shall make no law respecting an establishment

ot celigion, or prohibiting the free exercise

thereof...” For over two hundred years,

neither Congress nor the Supreme Court has

offered a definition of “religion” or “church,”

D. Kelley, Why Churches Should Not Pay ‘Taxes,

62 (1977). Rather than attempt a definition,

the scope of religious protection has turned

17

on the inclusion or exciusion of specific

claims. Historically, the amendment breaks

down into two components: (1) the Establish-

ment Clause and (2) the Free Exercise Clause.

Although this breakdown is convenient for

analytical purposes, an internal tension

exists between the two clauses: “may a govern-

ment remove burdens from, grant benefits

to, or make accommodations for the free

exercise of religion without simultaneously

promoting the establishment of a religion?”

Note, Constitutional Law: The Religion Clauses

--A Free Rein to Free Exercise?, 11 Stetson

L.Rev. 386, 388 (1982). Tne Establishment

Clause limits permissible governmental support

tor church conducted activities. Its main

objective, as construed by this Honorable

Court in Lemon v Kurtzman, 403 U.S. 602

(1971), “is to prevent...the intrusion of

{either state or religious institution]

18

into the precincts of the other...Judicial

caveats against entanglement must recognize

that the line of separation, far from being

a ‘wall,' is a blurred, indistinct, and

variable barrier depending on all the circum-

Stances of a particular relationship.” Unde-

niably, taxation and tax exemption implicate

governmental intrusion or support of religion.

See Walz v Tax Comm'n, 397 U.S. 644, 672-73

(1970) which upheld the tax exempt status

of properties used solely for religious

worship.

In Thomas v Review Board, 450 U.S. 707

(1981) this Honorable Court heid that the

denial of unemployment benefits imposed

—-an indirect burden on free exercise rights:

"Only beliefs rooted in religion are protected

by the Free Exercise Clause, which, by its

terms, gives special protection to the exercise

of religion [citations omitted]. The deter-

mination of what is “religious” belief or

Spiiestieaiaaammaasiaaaccaccicaaeer

19

practice is more often than not a difficult

and delicate task...However, the resolution

of that question is not to turn upon a judi-

cial preception of the particular belief

Or practice in question; religious beliefs

need not be acceptable, logical, consistent,

or comprehensible to others to merit First

Amendment Protection.” Thomas may be viewed

as the highpoint of free exercise protection

for indirect burdens on religious practices.

One year later, this Honorable Court in

United States v Lee, 455 U.S. 252 (1982),

erroneously refused to expand this First

Amendment protection to encompass the payments

of taxes.

In United States v Lee, Supra, the

government's need to collect revenues it

was held justified a limitation on religious

freedom. This governmental interest has

been a tormidable opponent to religion clause

challenges in the past. In a series of

20

cases, the tax court systematically denied

tax exempt status to "religious" organizations

when tne church in question served the private

purposes of the minister. See Unitary Mission

Church of Long Island v Commissioner, 74

T.c. 507 (1980); Southern Church of Universal

Bhd. Assembled, Inc., v Commissioner, 74

T.C. 1223 (1980); Bubbling Weli Church of

Universal Love, Inc., v Commissioner, 74

7.G.. 333 (1980). These cases represent

private tax avoidance schemes. But unlike

Universal Life Cnurch which has it's tax

exempt status, the organizations in question

were not bona fide religions. In reaching

its conclusion in the Lee case this Honorable

Court applied the Thomas balancing formula:

"Not all burdens on religion are unconstitu-

tional...The state may justify a limitation

on religious liberty by showing that it

is essential to accomplish an overriding

21

governmental interest." Tne Lee Court over-

rode the Constitution in order to maintain

an ineffective social security system against

the Amish's bona fide beliefs, and exacted

the tax despite their sincerity. The Court

concluded that "[b]Jecause the broad public

interest in maintaining a sound tax system

is of such a high order, religious belief

in conflict with the payment of taxes affords

no basis for resisting the tax." Thomas,

Supra, at 260.

The decision in Lee exemplifies the

Court's recent use of the traditional balancing

test to allow an infringement on religious

freedom. Clearly, this Honorable Court

considers the Internal Revenue Code asa

limitation on even sincere religious beliefs.

Further, the grant of a tax exemption and

the discriminatory practices and procedures

of the I.R.S. against “unapproved” churches

22

creates an involvement between church and

government through taxation of churches.

Indeed, the present actions of the I.R.S. and

the statements made by the Tax Court violate

the Estaolishment Clause by fostering exces-

Sive entanglement between government and

religion and gives’ significant aid to

"approved" religious enterprises. Thus

when specific churches are given tax exemp-

tions they are, in effect, given financial

subsidies and the Court may well be prepared

to nold that such action constitutes a break-

down of the separation of church and state,

and is but the foot! in the door leading

to an establishment of government "approved"

churches. "Any type of statutory exemption

from taxation that discriminates between

types of religious belief on the basis of

the content of such belief would offend

both the federal and state constitutional

23

provisions guaranteeing a separation of

church and state." Fellowship of Humanity

v- Alameda County, 315 F.2d 394, 153 C.A.2d

Sra 42957). "The purpose of the framers

of federal and state constitutional provisions

separating church and state and guaranteeing

‘religious liberty’ was to obtain relief

from laws making almost every deviation

from established practice or faith a crime,

and not to secure the right, under the guise

of religious freedom, to jeopardize the

safety, health or welfare of their fellowman.

Lawson v Commonwealth, 164 S.W. 2d 972,

291 KY. 437, (1942). Busey v District of

Columbia, 1943, 138 F2d 592, 78 US App DC 189,

conforming to mandate 63 S.Ct. 1277, 319

US 579, 87 L Ed 1598. The Tax Court clearly

abused its descretion and erred when it

failed to look to Taxpayer's 1040 Tax Return

24

admitted into evidence with Petitioner's

affidavit signed under penalty of perjury

testifying to the facts of said form.

Evidence in support of an issue of fact

clearly placed the burden ot proof back

into play and squareiy upon the Government.

Tne Tax Court further erred when it

placed a penalty upon the Petitioner for

filing a frivolous lawsuit. If the Government

can, in its instructions, request a taxpayer

who disputes their assessments’ to petition

tax court and omits to warn the taxpayer

that by doing so he will be fined a frivolous

penalty at the descretion of the I.R.S.;

this leaves the taxpayer in a precarious

position. In the case before the par, Peti-

tioner prought a legitimate suit. He even

prevailed, wnich was ciearly shown when

the I.R.S. redetermined his tax liability

in nis tavor. Upon the actions of the I.R.S.

ee

25

1.R.S. the Petitioner tried to withdraw

his suit and the Government and Tax Court

would not allow him to do so and then turned

around and claimed that his suit was

frivolous. This is a complete contradiction

of justice and a clear denial of Petitioner's

right to due process.

CONCLUSION

For all the foregoing reasons, it is

Submitted that this Petition for Writ of

Certiorari should be granted, thereby allowing

the Court to fulfill the "due Process" guarantees

of the Fiftn Amendment and separation of

church and state and establishment clause

of the First Amendment.

ALD EDWA

In Propria Person

5410 Orchard

Dearborn, Michigan 48126

(313) 582-8957

26

PROOF OF SERVICE

I, Donald E. Flynn, Petitioner in Propria

Persona herein, hereby certify that on the

9th day of March, 1986, I served three (3)

copies of the foregoing Petition for Writ

Certiorari on all the parties required

served under Rule 28 of the Rules

of the United States Supreme Court, as follows:

1. United States of America, represented

by GLENN L. ARCHER, JR., Assistant

Attorney General, MICHAEL L. PAUP,

RICHARD W. PERKINS, and THOMAS A .GICK,

Attorneys tor Tax Division, Department

of Justice, Washington,D. C. 20530

2 Commissioner of the Internal

Revenue, Department of the Treasury,

15th Street and Pennsylavania

Avenue, N.W., Washington, D.C. 20220.

by depositing same in United States Post

Orfice with first class postage prepaid

|

27

and that forty copies were deposited in

a United States Post Office with first class

postage prepaid and properly addressed to

The Cierk of the Supreme Court of the United

States, Supreme Court Building, One First

Street, N.E. Washington, D.C. 20543.

/ Zoe LO 1 a

DONALD EDWAWRD F ni yl

Petitioner i opria Persona

5410 Orchard

Dearborn, Michigan 48126

(313) 582-8957

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APPENDIX "A"

DONALD EDWARD FLYNN,

Petitioner-Appellant,

——

COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

Sixth Circuit

No. 85-1003

Appeal from the United States Tax Court.

Petitioner is appealing from an order

of the Tax Court affirming (in substantial

part) a notice of deficiency and additions

to tax issued by the Commissioner, and from

the Tax Court's decision to award damages

to the Government under 26 «60UL8.C. 6673.

The appeal has been referred to a panel

of the Court under Rule 9(a), rules of the

Sixth Circuit. Upon consideration of the

briefs and record, this panel agrees unanimously

that oral argument is not needed. Rule

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34(a), Federal Rules of Appellate Procedure.

The record shows that the Commissioner

of Internal Revenue determinead a deficiency

in the federal income taxes of petitioner

Donald Edward Flynn for the year 1981 in

the amount of $12,114. The Commissioner

also determined additions to such taxes

under 26 U.S.C. 6653(a)(1) and (a)(2) in

the respective amounts of $605.70 and 5U

percent of the interest due on $12,114.

Petitioner on January 16, 1984, filed a

petition in the Tax court seeking a redeter-

mination of the asserted deficiency and

additions. On November 19, 1984, the Tax

Court entered its order of dismissal and

decision which determined a deficiency of

$11,001 and additions to tax under 26 U.S.C.

6653(a)(1) and (a)(2) in the respective

amounts of $550.05 and 50 percent of the

interest due on the $11,001 deficiency. The

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Tax Court also awarded the Government damages

in the amount of $500 pursuant to 26 U.S.C. €673.

This appeal followed.

Petitioner's contentions on appeal are

basicaily threetold:

l.

That the Tax Court erred

in affirming (with minor

modification) the Commis-

sioner's determination

of deficiency and additions

to tax under 26 U.S.C. 6653;

Tnat the Tax court abused

its discretion in awarding

damages to the Government

under 26 U.S.C. 6673;

That the disallowance of

petitioner's charitable contri-

bution to the Universal Life

Church of Modesto, california,

violated the Establishment

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Ciause of the First Amendment.

In this case, the Commissioner issued

Petitioner a statutory notice of deficiency

for the year i981, fully disallowing a claimed

charitable contribution deduction of $25,000.

Petitioner claimed that he made the disputed

contribution to the Universal Life Church

of Modesto, California, and as _ such, was

entitled to deduct the amount in dispute

pursuant to 26 U.S.C. 170. At trial, however,

petitioner tailed to produce competent evidence

that he had in fact made the contribution.

He attempted to enter into evidence a letter

from the Universal Life Church acknowledging

a contribution of $25,000. The trial court

refused to admit the evidence under Rule

803(6), Federal Rules of Evidence ("business

record" exception to the hearsay rule).

The Federal rules of Evidence are appli-

cable to trials in the United States Court.

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Rule 143(a), Rules of Practice of the United

States Tax Court. Rule 803(6), Federal

rules of Evidence, provides that records

"kept in the course of a regularly conducted

business activity" are admissible as an

exception to the hearsay rule if supported

by the testimony of the custodian of the

records or another qualified witness. Under

this Court's decision in Bridger v. Union

Railway Co., 355 F.2d 382, 392 (6th Cir. 1966),

the actual keeper of the record need not

testity, but some person “in a _ position

to attest to its authenticity” must appear.

In a tax Court proceeding, a deficiency

asserted with respect to a charitable contri-

bution deduction is deemed to be presumptively

correct; the taxpayer has the burden of

rebutting this presumption. Welch v. Helvering,

290 U.S. 111, 115 (1933); rockwell v. Commis-

Sioner, 512 F.2d 882, 885 (9th Cir.), cert.

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denied, 423 U.S. 1015 (1975). In the present

case, petitioner did not produce a recordkeeper

or other qualified witness to authenticate

the letter he wished to offer into evidence.

Under Rule 149(b), rules of Practice of

the United States Tax Court, failure to

produce evidence in support of an issue

of fact as to which a party has’ the burden

of proof may be grounds for dismissal.

Because petitioner failed to substantiate

his claim, the Tax Court did not abuse its

discretion in dismissing his’ case. See

Montogomery v. commissioner, 367 F2d 917,

919 (9th Cir. 1966); Watson v. commissioner,

690 £.2d 632, 635 (9th cir. 1984); Funk

v. Commissioner, 687 F.2d, 266 (8th Cir. 1982).

such assessments are made for negligence

of intentional disregard of rules and regula-

tions with respect to income taxes. Again,

petitioner presented only an unauthenticated

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letter from the Universal Life Church to

substantiate the disputed deduction. He

tnerefore failed to rebut the presumption

of correctness attached to additions of

tax under Section 6653. Therefore, it appears

the Tax Court correctly Gismissed petitioner's

challenge to the Commissioner's decision.

Petitioner's second challenge goes

to the Tax Court's decision to award damages

to the Government urder 26 U.S.C. 6673.

That section grants the Tax Court discretion

to assess damages for assertion of a frivolous

Or groundless claim. Crain v. Commissioner,

737 0«6©P.2d «614170 = (Sth «€(Cir. 1984). In this

case, even — a full trial was held

on the charitable contributions deduction,

petitioner compietely tailed to provide

any evidence in support of his’ position

on this issue. Therefore, petitioner's

assertion was “groundless” under Section

ea Ban *

«a ge cae Cee

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6673 and the Tax Court did not abuse its

discretion in assessing damages.

Petitioner's last claim is that the

Government violated the Establishment Clause

of the First Amendment in disallowing his

claimed charitable contributions deduction.

Specifically, petitioner claims that in

disallowing the deduction the Government

has favored other churches over his church.

Petitioner's Establishment Clause claim

is premised on the fact that the donation

claimed on his return was in fact made.

The record conclusively demonstrates, nowever,

that petitioner failed to prove that he

in fact made any such donation. Therefore,

since the underlying premise of petitioner's

Establishment Ciause claim is faulty, that

claim must fail.

it appears that the questions on which

decision of this cause depends are so

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unsubstantial as not to need further argument.

Rule 9(d)(3), Rules of the Sixth Circuit.

It is therefore ORDERED that the decision

of the Tax Court be and it nereby is affirmed.

AFFIRMED.

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APPENDIX "B"

UNITED STATES TAX COURT

WASHINGTON, D.C. 20217

DONALD EDWARD FLYNN,

Petitioner,

-vV- Docket No. 1263-84

COMMISSIONER OF INTERNAL REVENUE,

Respondent.

ORDER OF DISMISSAL AND DECISION

This case was recalled from the calendar

for the Trail Session of the Court at Detroit,

Michigan on October 18, 1984 for trail.

Petitioner appeared and was heard. Counsel

for respondent appeared and filed with the

Court a motion for damages pursuant to Section

6673 of the Internal Revenue Code of 1954,

as amended. Upon the Court's own motion

and for cause appearing in the transcript

of the proceedings, it is

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ORDERED that this case is dismissed

pursuant to Rules 123 and 149(b), Tax Court

Rules of Practice and Procedure, by reason

of petitioner's failure to properly prosecute

the case and to produce evidence in support

of the claimed charitable ceductions. It

is further,

ORDERED and DECIDED that there is a

deficiency in income tax due trom petitioner

for the taxable year 198i in the amount

of $11,001.00 and additions to tax pursuant

to Sections 6653(a)(1) and 6653(a)(2) of

the Internal Revenue Code of 1954, as amended,

in the amount of $550.05 and 50% of the

interest due on the deficiency of $11,001.00,

respectively. It 1s further,

ORDERED that respondent's motion for

damages pursuant to Section 6673 of the

Internal Revenue Code of 1954, as amended,

+ See

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is granted in that damages are awarded in

the amount of $500.00.

(Signed) Stephen J. Swift

Judge

Entered: November 19, 1984