Petition for Writ of Certiorari — Jodele v. Commissioner

Supreme Court brief1987

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4 8 Court, US.

86 1285 (ert |

FEB & BRT

JOSEPH F. SPANIOL, JR.

SUPREME COURT OF THE UNZTED STATES Jj

UCTOBER TERM, 1986

JULTUS JONAS JODELE

COMMISSIONER OF INTERNAL REVENUE

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE WNINTH CIRCUIT

SRIEF FOR PETITIONER

wlaus Jones Jodeie

370 Altair Wev, #42

Sunnyvale, CA 949086

(908) 245-1606

PETITIONER PRO SE

Guestions for Review

Can Petitioner's, Jodele's, fitth amend-

ment right to be heard be satistied by

Summary proceedings ‘without opportunity

For oral argument) when Jodele 15 a

Lithuanian national American with English

as his second lanquege and is a layman who

has not had any formal training in law so

he does not know how to draft formal

pDriets like lawyers can?

vu)

not Jodele's right to the courts beiung

)

stricted by only allowing him to appear

J written pleadings only?

Itt

not a judgement to pay attorneys' fees

4a form of double taxation when the attor-

neys are already on 3s salary paved by the

people of the United States tnhrougn taxes?

Table of Contents

Questions for Resiew

Table of Citations

Opinions Below

Jurisdiction

Questions for Review

Statement of the Case and Facts

Argument

Reason for Granting Hrit

Conclusion

Certificate of Service

Appendix

axe

Table of Citations

pases

FMti-Fascist Committee yv. MeGrath ..... 16

241 U.S. 2123 (1951)

PPPS GR BM. FRRBE kc oh oo oe RD 5

380 U.S. 545 (1965)

Brescie Const. Co. v. Welard Cost. Co. 12

246 N.Y.5. 862

Laren 5. tin: SOP ive iarare nk. 0.36 a ee a ov 7

6 Wall 35, 46

Doyle vy. Mitchell Bros. Co. .......... oS .?

247 U.S. 179

ae « WSR OU hs 2 ib RSA 8

231 Fed. Rep. 110

Siar Te oe a es koe ee ee 3

ava U.S. 189 12920)

CROP WS a a Se ke a ak ea 15

S97 U.S. 254 (1970)

MOSHOG ©... HOOT: Go ib eh eae ee week ae

$04 U.S. 519 (1972)

PRL ME LOOM Ws. TURP UPROE oink os hk eee 8 ee rs

4 Wheaton 3165

FURr ree. Ws GRO ok cic ko 6 os PaO ee 13

384 U.S. 436 (1766)

Ge Oe .. CG es oe oh awe ke eres 3

eve U.S. S7 429203

Stratton's Independence vy. Howbert ..... 3

231 U.S. 399

Statutes

£6 i329 .0. BOGE? oe ek oe ee Se ke ee 6

Le U.S. Se ae eae eS 2 ks core ee eee 10

26 U9 .4.. 2 Gl os 6 v8 8 ee eee 10

oe UB Oe ee i oi es we ee VE eee 6,10

46 UcS.G: 2 Gees 6 6 ek oe ee ee - op

ceo GSS. Sore i as-is eee 5

£0 U.S.@7 | 9. Bae} si Os 6 eee 2

20 U. Sib. | Sette) 6 ccc ks eee 2

0 the Honorable William H. Rennquist,

Chietr Justice, and associate Justices of

+ne Supreme LCourt af the United States.

Julius Jones Jodele, Petitioner Pro Se,

prays that this petition for certiorari is

gantea to review the judgment of the Unit-

ed States Court of Appeals for the Ninth

Circuit entered in the above entitled case

on August 5, 1986 and denial of rehearing

2n bdenc entered on November 6, 1996

Opinions Below

The per curiem atfirmed judgment of the

United States Court of Appeals for the

Ninth Circuit whose judqment is herein

sougnt to 5e reviewed and is unreported.

The per curiam order of the United

States Court of Appeals for the Ninth

Circuit denying Jodele‘s motion tor re-

nearing ane rejecting the suqgestion for

renearing @®n Sanc 15s printed in Appendix.

w= = © \ i

_ -

+ od

a eet. te

Jurisdiction

The Unitea States Court of Appeals for

the Ninth Circuit filed a4 Vissiax’aieauan an

Rugust 5, 1996. Jodele timely ‘twithin 14

days pursuant to Federal Appellate

Procedure Rule 40! filed 4 petition for

renearing en banc an August 19, 1986.

Jodele's petition for renearing was denied

and 471s suggestion tor renearing en banc

was rejected by the United States Court of

Appeals for the Ninth Circuit's Order

Filed on November 6, 1986. This petition

1s timely Filed within 90 days of denial

or cenearing en Danc persuant to Supreme

Court Rule 20.2 and 28 U.S.C. § 2101 ‘cd.

This Court has jurisdiction pursuant to

28 9.5.0. §$ 1254 (1) providing for review

after rendition of judgment.

a i, w

earth Renal a5

dit rae

Guestions for Review

Pan Petitioner's, Jodele's, fifth amend-

ment right to be heard be satisfied by

summary proceedings (without opportunity

for oral arqument) when Jodele 15

Lithuanian national American with English

as his second language sand 1s a layman who

has not had any formal training in law so

he does not know how to dratt formal

briets like lawyers can:

Is not Jodele's right to the courts being

cestricted by only allowing him to appear

by written pleadings only?

Iit

Is not a judgement to pay attorneys' fees

a form of gdouble taxation wnen the attor-

nevs are already on a salary payed by the

people of the United States through taxes?

ee a ee

Statement of the Case and Facts

Jodele received a notice of deficiency

For the tax years 1980, 1981 and 1°82 from

the Internal Revenue Service dated March

26, 1985. On the face of the notice was

stated that “If you want to contest this

deficiency in court...., you have 70 days

From the above mailing date of this letter

to file a petition with the United

ax Court for 4 redetermination of the de-

Ficiency."

On June 20, 1985, Jodele filed 4 peti-

tion, a request for designation of trial

at Los Angeles, CA and a requ

jury trial.

On June 26, 1985, Jodele's request for

designation of trial at Los Angeles, CLA

was granted but never materialized.

On July 2, 1985, Jodele's request for a

jury trial was summarily denied.

On Aug 12, 1985,

of damages under

upAaN which relief

with memorandum in

S 66

Comm1

support

Motion for

fae be 4

4 4

be granted

Objections to the Respondent'

were due on September

1985 was a Monday.

Court was closed that

filed on September

- = 2

“nt 2epteroer oo,

motion to disml1

on the types of

Court can make.

ections to Respondent '

The Fir:

L3G:

day so Jodele

5 motions

L7eu, the

Jodele also filed a

kK of jurisdiction

determinations

ssessmenrwt

and Motion

ssioner

thereot

motions

September

Mondays

peciftic

"“{Tihe' Tax Court shall nave jurisdic- |

tion to redetermine the correct amount

of the deficiency....and to determine

whether any additional amount, or ad-

dition to the tax should be assessed"

And 26 U.S.C. $ 6211 specifically defines

wheat constitutes 4 deficiency -

“CT lhe term “deficiency" means the a-

mount by which the tax imposed by sub-

title Aor 68, or chepter 41, SZ, Sa;

44, or 45".

Subtitle A is Income Taxes ana 26 U.5.C. §

Quotes

(Glross income means ali income from

whatever source derived, including.

the tollowaing items: (1) Compensation

ror services.

Emphasis added to the word "from" because

the word "by" was not used. Jodele's wage

was the compensation for services and no

income was derived form the compensation.

Had the yord “by" been used where "from"

1s used in § oi, then there wovuid be no

Question that the internal Revenue i_ode

cansiders the DeaSsic campenseation as tax-

able income. But as worded now, the basic

wage must de converted into taxable Ts te

Thi

come . interpretation 15 consistent

with 438 Am Jur 20 $8 &< Constitutional pro-

tection of right to work.

Tt ee

ght to labor and to its proa-

tection from unlawful interference 15

3 constitutional as well as 3 common-

law right. Every man has 2a natural

riaht to the fruits of Ais own indus-

.3200r 135 geered ta Se oraperty, es-

pecially wathin the meaning of const

tutionel quearanties. Thus, the ri19Q

to acquire property includes the right

> acquire oroperty ody labor. T

riant to earn wages 1S just as much

property and within the protection of

tne due opracess clause af the Four-

teenth Amendment to the Federal Con-

stitution as earned wages.”

But if the government nas the power to tax

something, then the government has the

power to gesrtroy oe AS was quoted in

McCuilock v. Marvland and in Crandall v.

Nevada-'That the power to tax involves the

power to destroy.“ Then, 1f the govenment

can destroy Jodele's wages, then Jodele

covidn't have aright to them; The gov-

ernment would heave the right to Jodele's

wages and then we would be «4 communistic

country instead of a strong democracy we

once had. And consistent with Edward e.

Keith, 2351 Fed Rep 110 were wes quoted,

"One does not derive income by rendering

services and charging for then." This

Court said in Shaffer -«. Carter that whet

constitutes as taxable income “resolves

tseif into 32 mere Question of detini-

tions". A question that this Court an-

swered very plainly in Eisner «. Macomber ;

‘{Wle find little to add to the suc-

cinct definition adopted in two casses

arising under the Corporation Tax Act

of 1909 (Stratton's Independence -v-.

Howbert, 231 U.S. 399, 415; Deyle es.

Mitchell’ Bros. Ce., 247 U.S. 179,

185)-"Income may be defined as the

gain derived from capital, from labor,

or from both combined,” provided it be

snderstoog to include profit gained

througqn 4 sale or conversion of capi-

tal assets, to which it wes applied in

Dinettes

the Doyle Case ‘pe. i183, 185)

The Government, aithough dasing

its argument upon the definition § as

Quoted, placed chief emphasis upon the

word “gain,” which was extended to in-

>lude 4 variety of meanings; while the

ificance of the next three words

was either overlooked or misconceived.-

‘Derived-from-capital":>-"“the gain-

derived-from-capital ," etc. Here we

nave the essential matter: not a gain

accruing to capitsel, not a2 growth or

increment of value in the investment:

but @ gein, a profit, something of ex-

changeadle valve proceeding from the

property, severed from the capital

SoOwever invested or employed, 3nd

coming in, odeing “derived,"“ that 15,

received or drawn by the recipient

the taxpayer) for his separate use,

benefit and daisposal;-that 15 income

Jerived from property. Nothing else

answers the description.

v1thn Tn1ls understanding of income

Jodele claims nis weges are not. 50 «€6the

question in Tax Court becomes-Has Jodele'

wages Deen converted into taxabdle income

sna now?’ This question the Tax Court has

no jurisdiction to answer The Tax Court

can only redetermine the deficiency, or

“ax, ON an estadlisned income and not an

originel determination on whet 15 or

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ie | | le - edd ee my hE eG f jal wy . Srepaeing!

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ery. rials Daas ee ares ee we ese eile

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ae oF tee eee ae eee, ey eee oe i Ce Tyke eee eT

Since this case never went to trial, it

1s assumed that the Commissioner 15 vusina

3 Form W-2 as proot of income. But the

Form W-2 has irrelevant intormation oan it

for this case. What 15 on Form W-2 15 de-

fined in 26 U.S.C. § 60351;

“Receipts for employees

oe | | eee a written

statement showing the following:

‘

_—

(3) the total amount of wages as

detined in section 3401(a),"

Since section 3401a) 15 in chapter 24

of suotitie ©, and the Tax Court can oniy

make determinations in subtitle Aor B, or

chepter $1, 42, 43, 44 or 45 per 26 U.S.C.

§ 6211, the Tax Court can not use the in-

Formation on Form W-2Z2 to determine a defi-

Slency because what 15 1Nn subtitle L, has

i. Emphasis added to the word "wages"

because the word "income" was not used.

Again atfirming Jodele's contention that

hls wages are not income.

- 10 -

= <

eerie

ee eee

no relevance in svuotitals A, B or D of the

Internal Revenue Code. The Tax Court does

not have the jurisdiction to accept a Form

W-2 because sll of the intormationr on ut

1s under subtital LC!

On September 4, 1°86, Jodele filed an

objection to the Commissioner's motion for

damages. Tfhe Commissioner alledged that

Jodele's primery purpose for these pro-

ceedings wes for delay.

Dn Dectober 43, 1985, the Tax Court:

i Ssummeariliy appraved 4nd adopted a

memorandum sur order oft the Special Trial

Judge

(2) summarily granted respondent's

motion to dismiss For failure to state a

claim upon which relief can be granted;

(32) summerily denied petitioner's motion

to dismiss tor iack of jurisdiction;

(4) summarily decided that there are de-

1ciencies in petitioner 5 Federal income

tax and additions to tax; and

(5) summarily awarded damages to the

United States in the amout of $5,000 pur-

suant to section 6673.

The Tax Court erred in adopting the men-—

orandum sur order because this order has

made findings of fact and conclusions of

law on a4 summary proceeding. This 15 in

diredt violation of the New York Supreme

Court's opinion in Brescie Const. Co. ».

Walard Const. Co., 264 N.7Y.5.9362, 238 App.

Div. 360.

he Tax Court erred in granting Commis-

motion to dismiss a lay pro se's

petition for failure to state a claim upon

which reliet could be granted because this

153 in direct violation of this Court's o-

pinion in Haines gv. Kerner, 404 U.S. S19.

a Tr _ 7 ;

The Tax Court erred in summarily denying

Jodele's motion to dismiss for lack of ju-

risdiction because the Tax Court anly hes

jurisdiction to redetermine a deficiency

and not make an original determination of

what constitutes taxable income. Also the

Commissioner hes no relevant evidence to

believe that Jodele had enough taxable in-

come to issve a notice of deficiency which

the Tax Court has no jurisdiction to de-

termine e1ther.

The Tax Court erred in summarily finding

that there are deficiencies in Jodele's

Federal income tax because there was no

evidence entered to suggest that Jodele

had converted his wage into taxable = in-

come Wath no ancome, there can not pos-

sibly be 2a deficiency.

The Tax Court erred in summarily awaerd-

ing dameges to the United States in the a-

mount of $5,000, because Jodele's primary

purposes for instigating these proceedings

are to resolve these questions and 1s5s5uvues

of laws and rights and not primarily for

delay. Somenow From 4 ley pro se

briefs, it was established by summery pro-

dings that Jodele instituted court pro-

ceedings primerily for delay.

The Tax Court erred 1n summerily dis-

missing this case without complying with

Jogele‘s rignt to be heard. Although

Jodele wes sorne in Los Angeles, CA,

Jodele was raised by his Lithvanian na-

tional parents. Just i1lke a4 lot of other

Americans, English 15 his second language.

Jodele doesn't like to write and theretore

does not write weil, but from necessity

has peen improving. By living most of his

iife in the United States, Jodele has

learned the English language and can un~

derstand and speak 1t very weil for a lay-

man. By only allowing Aim to present his

cases 1n writing, effectively denies him

n1s rignt to be heard. The word used 15

“heard” and not “reed”. By being forced

to compete with a staff of trained lawyers

in writing only, Jodele mut be ablie to

draft formel briefs just like lawyers do.

But this Court seid in Haines sv. Kerner,

4042 U.S. 519, that ley pro ses snould not

be held to the same stringent standards as

lawyers are. A lamaitation of written ap-

pearances only 50 06 6severely handicaps

Jodele's etfectivity in the courts thet it

denyvs Jodele an opportunity for 3 meaning-

Ful hearing in a2 meaningful manner. This

is against this Lourt's opinion in

Aarsstrong -¢. Manzo. These summery pro-

ceedinas saiso denied Jodele an etfective

opportunity to defend by confronting any

sdverse witnesses and by presenting his

Own arguments and evidence orally- against

this Court's opinion in Geldberg eo. Kelly.

.Tihe riant to be heard before being

condemned to suffer grievous loss of

anv «Kind, even tnougn it may not inm

solve the stigma and hardship of a

- 15 -

eriminel conviction, 153 4 principle

basic to our society."

This Court mede this quote in Aanmti-

Fascist Committee #. McGrath. Jodele will

suffer a grievous los of almost $50,000 if

this Court chooses not to grant Jodele

certiorari. This 1s more wage than Jodele

has been sable to earn in i980 and 1981

combined!

This Court hes repeatedly and consist-

ently used the word “heara” and not the

word “reaa"“ to fulfill the Constitutionel

requirement of due process of law.

On appeai to the Jnited States Court of

Appeals for the Ninth Circuit, the Court

summarily affirmed the Tax Court's summary

judgment and imposed attorneys' fees upon

Jodele. The Ninth Circuit bdbeidly stated

maw

that, Thes 18 no constitutional right to

oral arqument.

" OAbE

i hags, neertaay

ee ar ee) oe ee a ao ei Poe i

; es

*~¥

- ov. —— y : )

4 4 ay i

ear ee

ac = ae eT es et DE Ve ae

ri , ae ae os

3) Ly i a) Wi é5 ii Viet Se ;

a ce A Toes he var Para rie

Ts il

>| ei as pris oP thas tS |

i : >

Vics 7% “4 _- Diet ie eee, a

7 eta L gtee at

But there 15 a constitutional right to

be heard, not to be read. And in Jodele's

case, he was s0 severely handicapped in

written proceedings thet his right to be

heard can not have been complied with,

without an oral presentation.

Jodele pointed out to the Ninth Circuit,

in his petition for rehearing en banc,

that whatever the Commissioner claimes can

not be presumed correct unless a minimal

ePevlidenciary foundation 1s laid showing

that Jodele's wages have been converted

into income. Just because Jodele was

walting to present his case to the court

in Los Angeies, ‘4s has been granted by

the Tax Court in Washingtons 15S no reason

to impose sanctions against Jodele and

summarily dismiss his case tor failure to

state a claim upon which relief could be

Qranted. See Haines v. Kerner, 404 U.S.

var

oo)

re Pog

a aly

ooo

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a oS —

—,

;

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i >

_ os

Pe T

Ar qument

Jodele may not be able to artfully plead

his case, But he has very substantial is-

sues of law to settle and is entitled to

an opportunity to offer proof. If these

proceedings keep getting summerily dis-

missed, Jodeie will be condemned to suffer

@ grievous loss; not for being proved

wrong but for not being as skilled as a

lawyer is in dratting formel pleadings.

Reason for Granting Hrit

This Court has from time to time took on

the task of delineating, 1n meaningful

language, the manner in which the

constitutional rights of the individual

could be protected. Probaly most recently

against overzealous police practices in

Miranda v. Arizona. Supreme Court Justice

Wilizam O. Douglas once saic that our Bill

of Raghts curb all three branches of gov-

ernment. it subjects ail departments oat

_ 13 fate

government to a rule of law and sets

boundaries beyond which no official may

go. It emphasizes that in this country

man walks with dignity and without fear,

that he need not grovel before an all pow-

erful government. Gut todey, the |.R.$.

hes usurped so mucn power that it has the

lay public groveling at their feet. This

Court should delineate similar guidelines

For the I.R.S., 1m conjunction with the

Tax Court, the manner in which the consti-

tutional rights of the individual could be

orotected from the overzealous I1.R.5.

practices. Jodele understands that the I.

R.S. needs power 1n order to perform 1ts

Function, but to deprive individuals their

rights as a4 normal course of buisness

breeds contempt for the I.R.S. and its

laws. The cnences of an individual

comming in contact with the I.R.5. are

much greater than one being confronted by

8 police otficer.

‘

oeuy

ie a a a lt al in ae aa a Sth ita Sa

saab TRA I LN LE

LEER SDE BS

Conclusion

Jodele was denied an effective opportu-

nity to defend By confronting any adverse

witnesses and by presenting h1s5 own argu-

ments and evidence orally at 4 meaningful

time and in a3 meaningful manner, and

therefore, has been denied his constitu-

tional right to due process of law.

This Court should determine whether im

posing attorneys' fees 15 3 form of double

taxation when they are imposed on 6 pei~

vate citizen and the attorneys are employ-

ees of the United States. The attorneys

already draw a salary that 15 payed by the

taxpayers, including Jodele.

My Commission Expires:

Wherefore, tne petitioner asks this

Court tnat, for all the foregoing reasons,

the petition for writ of certiorari be

granted.

Respectfully subdmitted,

juUuLius

State of California

County of Sante Clara

Sworn and suoscribded to me this 2nd day

of Februery, 1987, and before me personel-

ly appeared Julius Jones Jodele to me well

known ang known to me *o be the person wno

executed this adocument.

el lle

AN a LOM te as Pls aii ala te Na RTS le

Pebsrat bho

Certificate of Service

1s Nereby certified thet service of a

true and correct cooyv of this petition hes

been made on the Attorney for the Appellee

Sy mailing 4 copy thereof on this ird dey

9f Febrvuery, 1987. in an envelope, with

postege prepeid, properiy addressed to hin

6s follows:

Department of Justice

Tax Division

-.0.B80x 5d2

wWeshington, 0.C. 20044-4502

Jodcele

State of Cal:ifornia

County af Senta Clara

Sworn ana suoscribed to me this 2nd day

Or Feorvery, 1987, ana before me personal-

ly appearea Julius Jones Jodele to me weil

<nown and known to me to de the person who

executed this document.

“y Commission Exoires:

Appendix

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ein site

UNITED STATES COURT OF APPEALS

FOR fHE NINTH CIRCUIT

«, August 5, 1986

Julius Jonas Jodele,

Petitioner-Appellant,

No. 835-7716

MEMORANDUM*

Commissioner of Inrenel

)

vu, )

)

Revenue, Respondent-Appellee. )

Petition to Review a Decision of the

United States Tax Court

Submitted July 23, 1986%%

Before: SNEED, ALARCON, and NOONAN, Cicuit

Judges.

Per Curiam.

Affirmed.

Soe ga

=! tity te éprng Es Aate «9

af tw «

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

November 6, 1986

Julius Jonas Jodele,

Petitioner-Appellant,

} ORCER

Commissioner of Inrenal }

Revenue, Respondent-Appellee.?

Petition to Review a Decision of the

United States Tax Court

Submitted July 25, 1986%*%

Before: SNEED, ALARCON, and NOONAN, Cicuit

Judges.

The panel as constituted above has voted

to deny the petition for rehearing and to

reject the suggestion for rehearing en

banc.

The full court has been advised of the

suggestion for rehearing en banc, and no

judge of the court has requested 4 vote on

the suggestion for rehearing 2n banc.

Fed. R. App. P. 35(b).

The petition for rehearing 1s denied and

the suggestion for rehearing en banc 15

rejected.

st RSE ipa 5 ' — i i ie i te i - 5

United States fax Court

Washington, D.C. 20217

October 4, 13785

Julius Jonas Jodele, )

Fetitioner ,)

! Docket No.

ch, 3

J 1918S5-8s5

Commissioner of Internal)

Revenue, Respondent.)

ORDER OF DISMISSAL AND DECISION

lIpon consideration of the record herein,

and for reasons appearing in the memoran-

dum sur order of the Special Trial Judge,

which 15s hereto attached and served here-

with and which we approve and adopt, if 15

ORDERED that respondent's motion to dis-

miss for failure ta state a claim upon

which relief can be granted tiled oan

August 12, 1985, 15 hereby granted. It is

Further

ORDERED that petitioner's motion to

dismiss for lack of jurisdiction, filed an

September 5, 1985, 15 genied. It 15

Furtner

ORDERED AND DECIDED that there are deti-

c1encies in petitioner's Federal incame

tax and additions to tax 4s follows:

Adaition to Tax

Seretion Section Section

Year Deficiency 6653a(1) 66535a(2} 6654

1930 $6,458.68 $327.43 -- $397 50

1981 86,462.00 $323.10 € $495.15

1982 $8,050.00 $402 .50 <x $783 .74

* 50% of the interest due on $6,462.00.

tt 50% of the interest due on $8,050.00.

and that damages are due from petitioner

which are hereby awarded to the Unitea

States in the amount of $5,000 pursuant to

section 6673, Internal Revenue Code of

1954, as amended.

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