Petition for Writ of Certiorari — Rokke v. Commissioner
Supreme Court brief1993
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IN THE SUPREME
COURT OF THE UNITED STATES
OCTOBER TERM, 1993
DONALD LEIF ROKKE PETITIONER
vs.
COMMISSIONER OF INTERNAL REVENUE
RESPONDENT
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD LEIF ROKKE
221 S.W. iIS3RD STREET
SUITE #1190
SEATTLE, WASHINGTON 98166
(206) 979-0723
—_——_——— eS SS Swe we eee ee as eo
i. Did the 9th Circuit U.S. Court of
Appeals Memorandum affirming the Tax
Court’s Order, but rejection of its
holding that Petitioner’s contribution
wee ea service violate:
. 1.1 Petitioner’s right to a
Jury Trial guaranteed by Amendment VII
of the U.S. Constitution and
1.2 Constitute an unlawful
decision based on the case facts, Tax
Code, case made lav, IRS Rules and
Regulations, as well as
1.3 Violate Petitioner’s
Amendment XIV guaranteed Rights to Due
Process and Equal Protection of the Laws?
2. Did the 9th Circuit U.S. Court of
Appeals’s Order denying Petitioner’s
Motion for Reconsideration violate
Petitioner’s Amendment XIV Rights to
Due Process end Equal Protection of
the Laws?
TABLE OF CONTENTS
PETITION FOR WRIT OF CERTIORARI TO THE
WASHINGTON STATE SUPREME COURT
GPEMEOMS BELOG 2 cc cccccccccccecccee 6
SUTGRSCTION cccccccceccceccececes 7
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ....ccccccccces 7
STATEMENT OF THE CASE ..cccccccccece 8
REASON FOR GRANTING THE WRIT ..... 28
CONCLUSION ........ Co cccccccccccs - 64
INDEX TO APPENDICES
Appendix 1 I.R.S. 1986 & 1987
Deficiency Finding
Appendix 2 U.S. Tax Court Order
denying Petitioner’s Motion for
ii
Reconsideration of The Tax Court’s March
22, 1991 Denial of Peitioners Motion to
transer Petitioner’s case to the U.S.
District Court for Petitioner’s
counterclaimed Unjust Enrichment Jury
Trial. Dated April 3, 1991
Appendix 3 U.S. Tax Court Notice
of Service of Transcript, Dated June 11,
1991 with Tax Court Judges May 10, 1991
Bench Opinion and Oral Finding of Fact
attached.
Appendix 4 Sth Circuit Court of
Appeals July 23, 1993 Order stating case
shell be submitted on the briefs and
record, without oral argument, on
Wednesday, August 4, 1993 in Seattle,
Washington.
Appendix 5 9th Circuit Court of
Appeals July 29, 1993 Order Denying
iii
Petitioner’s Motion for Continuance to
enable submittal of recent citations of
related cases.
Appendix 6 Sth Circuit Court of
Appeals August 9, 1993 stamped and
unsigned MEMORANDUM Ruling finding
against Petitioner on all counts.
Appendix 7 Sth Circuit Court of
Appeals August 9, 1993 stamped and
unsigned Order Denying Petitioner’s
Motion for Remand to the district court
for jury trial, Denying Petitioner’s
Motion to reconsider the denial of a
continuance, and Denying Petitioner’s
Motion for leave to file additional
citations with the additional lcitations
memorandum to be rejected and not vileld
by the clerk.
Appendix 8 9th Circuit Court of
Appeals September 27, 1993 stampes and
unBigned Order Denying Petitioner’s
Petition fo Rehearing and Rejecting
Petitioner’s suggestion for rehearing en
banc.
Appendix 9 Amendment VII of the
United States Constitution
Appendix 10 Amendment XIV of the
United States Constitution
Appendix 11 Bleck’s Law Dictionary
definition of "Ordinary income."
Appendix 12 IRS PUBLICATION 561
DETERMINING THE VALUE OF DONATED
PROPERTY paregraph quote
Appendix 13 Jarre_v. Commissioner,
64 T.C. 183 (1975) precedent case
Appendix 14 Gose _v. Commiseioner,
59 T.C. 594 at page 596 precedent case
Appendix 15 Black's Law Dictionary
definition of "Spontaneous declaration.”
Appendix 16 Aerospace Engineering
April 1989 Edition article about the
Advanced Medium-Range Air-to-Air Missile
System
Appendix 17 1987 Aviation Week and
Space Technology article about the
Advanced Medium-Range Air-to-Air Missile
System
TABLE OF AUTHORITIES CITED Page No.
CASES
Jarre_v. Commissioner, 43, 46,
64 T.C. 183 (1975) 49 & 51
Vi
Goss _v. Commissioner, 43, 48,
59 T.C. 594 at page 596 49
(1973)
STATUTES
United Stetes Constitution, 3, 8, 12
Seventh Amendment 314, iS.
24, 36
United States Constitution, 6, 8 18
Fourteenth Amendment i939, 37
Title 28 United States Code, 7
Section 2403(a)
Internal
Section
Section
Section
Section
Revenue Code,
170
1221(3)
1346
6512(a)
42
44
14
14
Section 6653(a)
OTHER LAWS
IRS Publication 544
IRS Publication 561
COMMON LAW
Unjust Enrichment
22, v7, 38
62, 63
16
242, 33, 42
2, 3, 12,
Black’s Law Dictionary Definitions:
Ordinary Income
Spontaneous Declaration
Clearly Erroneous
iS, 42, 43
S50, S9
32
36
A a a a <i nm ate come
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1993
ee re ee ee ee ee ee ee ee ee eS ee ee ee
DONALD LEIF ROKKE, Petitioner
vs.
COMMISSIONER OF INTERNAL REVENUE -
Respondent
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ee ee ee ee ee
Petitioner, DONALD LEIF ROKKE,
respectfully prays that a writ of
2
certiorari issue to review the rulings
of the United States Court of Appeals
for the Ninth Circuit which:
. 1. Contained many errors of
fact and law relating to Petitioner’s
IRS and Tex Court disallowed 1986
contribution of Petitioner’s personal
property, collection of data,
manuscripts. The contributed
manuscripts were of "“unususal historical
importance". The U.S. Government,
acting on the contents of this
manuscripts collection contribution,
realized about $924 Billion in macro
Unjust Enrichment. This $924 Billion
resulted from the U.S. Government’s
seizure of $604 Billion in illiquid
Savings and Loan orqanizations essets
and a like U. S. Government seizure of
$320 Billion in illiquid Bank assets.
The IRS/Tex Court disallowance of
Petitioner’s 1986 Income Tax Deduction
for said contribution plus imposition of
penalties on Petitioner constituted
breech of unileteral contract,
compounded by malice, with the resultent
aforementioned Unjust Enrichment of the
Government. For that Unjust Enrichment
Petitioner was and is Constitutionally
entitled to an Amendment VII enabled
common law besed jury trial.
Petitioner demanded his (Amendment VII)
constitutionally guaranteed jury triel
in Petitioners first eppeal from the
IRS’s final Deficiency Finding.
Petitioner’s demand for a U.S. Digtrict
Court enabled jury trial was
unconstiitutionally denied by the Tax
Court as well as by the U.S. Court of
Appeals for the Ninth Circuit. When
that Jury Triel finelly tekes place
Petitoner will be demanding a finders
fee of 20% of the aforementioned $924
4
Billion in Unjust Enrichment that the
U.S. Government realized by acting upon
Petitioner’s 1986 contribution. In
addition, Petitioner will be demanding
appropriate penalties for malice based on
the IRS/U.S. Courts consistent unjust
and with malice aforethought imposition
of negligence penalties against
Petitioner. Petitioner’s 1986
contribution was a perfectly legal
deduction for which the IRS/U.S. Courts
allowed Petitioner an income tex
deduction of $3,421. This malice was
compounded by the fact that the IRS/U.S.
Courts knew full weil that Petitioner’s
contribution was a personal property,
collection of data, manuscripts
collection contribution which Congress
intended Petitioner to be able to deduct
at its full $2 Billion (+) Fair Market
Velue. This malice was further
compounded by the U.S. Government’s
Court’s chronic and gross abuse of
Judicial discretion, misstatement of
facts plus mininterpretation of the leave
relative to Petitioner’s case. In
addition, the U.S. Courts involved were
guilty of sanctioning gross
irregulerites of the Court’s proceedings
which were obviously intended to
maliciously diminish, misrepresent,
distort, and maliciously damage
Petitioner’s case.
ae Denied Petitioner’s
Motion for Reconsideration which would
have:
° 2.1 Implemented
Petitioner’s Oral Argument against
Petitioner’s 1986 contribution being
mis-categorized as one of services
and/or as ordinary income property as
well es
2-2 Implemented
Petitioner’s acquisitian plus submittal
of very relevant additional citations.
P 2.3 Consequently
seid denial violated Petitioner’s
Amendment XIV Riaqhts to Due Procese and
Equel Protection of the Lavws.
OPINIONS BELOW
The unpublished IRS
Deficiency Findings, Tax Court
Order/Bench Opinion & Orel Finding of
Fact, and the U.S. Court of Appeals for
the Ninth Circuit Clerk siqned Orders as
well eas the Panel of Judges unsiaqned
Memorandum plus unsiqned Orders are the
subject of this Petition for Writ of
Certioreri. The aforementioned judqement
documents are included es Appendix i}
thru 8 to this Petition.
JURISDICTION
The U.S. Court of Appeals for
the Ninth pie MEMORANDUM was
issued on August 6, 1993. Petitioner ig
filing a timely Petition for Writ of
Certiorari to the United States Suprenme
Court by means of this document. The
United States Supreme Court’s
jurisdiction ig invoked under Title 28,
U.S.C. gwection 2403(a) without the
requirement that the U.S. Court of
Appeals for the Ninth Circuit certify to
the Attorney General the fact that the
constitutionality of an Act of Congress
was drawn into question.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
‘ Amendment VII to the United
States Constitution is set forth in
Appendix 39.
‘ Amendment XIV to the United
States Constitution is set forth in
Appendix 10.
STATEMENT OF THE CASE
° 1. Prior to 1986 Petitioner,
whose life-long hobby hes been
macro-economics, became aware end wes
eable to quantify the pre-Resolution
Trust Corporation monumentel debt of
this nations banking and savings and
loan industry. It appeared that nothing
short of a free world economic collapse
could resolve this prodigious debt
bubble. Petitioner shared his concern
with a CIA aqent who was mentoring
Petitioner after Petitioner’s return
from a 4.5 year tour of duty with an
Arabian CIA cover company. The CIA
egent pleaded with Petitioner to
identify a "national entity survival’
scenerio that would extricate the nation
short of a free world economic collapse
and/or run away inflation. In December
1986 Petitioner was able to
satisfactorily summarize the nations
Bank/S&L debt crisis and identify a
viable national entity survival
scenario. In mid-December 1986
Petitioner contributed this Personal
Property, Collection of Data,
Menuscripts collection to President
Ronald Reagen with copies to Mr. Baker
the Secretary of Treasury and Mr. Casey
the head of the CIA.
‘ 2. In mid-January President
Reagan, ecting on this crisis
information, assembled a massive joint-
10
tesk-force comprised of the The U.S.
Attorney General’s Office, The
Department of Justice, The FBI, The
Federal Home Loan Bank Board, The
Treasury Department, the FDIC, the
FSLIC, and the IRS to cope with the
problem. The U.S. Government utilized
Petitioner Collection of Data and
National Entity Survivel Scenario
contribution to resolve the monumental
Bank/S&L debt crisis without economic
collapse of the entire free world or run
away inflation.
° 3. In April 1987 Petitioner
Claimed a 1986 Federal Income Tax
Deduction of $250,000 as the modestly
estimated Fair Market Value of
Petitioner’s Personal Property,
Collection of Data, Manuscripts
contribution. This contribution has
proven to be of profound historically
ii
important.
4. In December 1988 the IRS
Examined Petitioner’s 1986 Federal
Income Tex Return and disallowed
Petitioner’s Personal Property,
Collection of Data, Manuscripts
contribution. The IRS alleged that it
was a contribution of Petitioner’s
Ordinary Income Property.
° i Petitioner appealed that
finding up thru the IRS appeal heirarchy
with no deviation in the IRS posture
that Petitioner’s 1986 contribution vas
disallowed beceuse it was considered to
be a donation of Ordinary Income
Property. See Appendix 1 for that final
IRS Deficiency Finding.
. 6. On April 10, 1990
Petitioner, eas specifically directed by
12
the IRS, Appeealed to the United States
Tex Court. This Appeal contested the
1986 and 1987 Income Tax Assessments.
This Appeel also demanded ea jury triel
based on the Common Law Unjust
Enrichment espects of this case and
Petitioner’s Right to a Jury Triel thet
is querenteed by Amendment VII of the
U.S. Constitution.
° 7. Petitioner soon realized
thet he had committed e procedural error
by eppesling, as directed by the IRS,
to the U.S. Tex Court where Jury Triels
ere not provided. Instead Petitioner
shovld have Appesled to the U.S.
District Court which can implement Jury
Triel Proceedings. On March 18, 1991
Petitioner submitted ea Motion to the Tax
Court requesting transfer of his case to
the U.S. District Court to implement
Petitioner’s demand for e Jury Triel
13
based on the Unjust Enrichment Common
Law aspects of this caze. Thie Motion
was returned to Petitioner denied by the
Tax Court with March 22, 1991 clearly
stemped as the denial date.
8. On March 29, 1991
Petitioner submitted a Motion for
Reconsideration of Petitioners Motion to
trangser the case to the U.S. District
Court.
3. On April 9, 1991 the Tex
Court issved an unconstitutional Order
denying Petitioner’s Motion to trensfer
the case to U.S. District Court. See
Appendix 2 for a copy of that Order.
The erroneous rational used by the Tex
Court in thet order was thet:
: *... there ig no wmerit to
petitioner’s request for a jury triei in
14
the Tax Court.” with precident cases
cited and
. *... once a petitioner files
a Tex Court petition, the Tax Court has
exclusive jurisdiction and no other suit
involving the determination of tax due
for year covered by the petition may be
brought by petitioner. Sec. 6512(a),
I.R.C. Thus , section 6512(aea), I.R.C.,
operates es ea limitation on the general
jurisdiction grant of section 1346,
I.R.C., which grants the District Court
jurisdiction over suits to recover
texes."*
———————— 7
-Clearly the Tex Court Sudee erred by
using inferior I.R.C. statutes to
violate Petitioner’s Amendment VII
guerenteed Constitutional Right to ea
Jury Trial. Petitioner’s jury trial
right wes based on the Unjust Enrichment
i5
Common Law aspects of this cese and the
trial by jury for Commaon Lew issues
provided by Amendment VII of the U.S.
Conatitution. The U.S. Constitution is
the supreme lew of the nation. The Tax
Court Judge erred when he violated
Petitioner’s Constitutional Rights to a
Jury Trial based on the aforementioned
Judge cited "lesser levw* I.R.C.
provisions.
° io. During the ensuing May
6, 1991 Tex Court hearing the IRS
ergued that the contribution vas
unellowable because it was a
contribution of Ordinary Income
Property. Using Bleck’s Law
Dictionary’s definition of Ordinary
Income Property (See Appendix 11) and
Petitioner’s life long collection of w2
end 1040 Professional Engineer Income
Tex Returns Petitioner was able to
16
convincingly prove that the contested
contribution constituted a donation of
Petitioner’s Personal Property,
Collection of Data, Manuscripts. IRS
Pamphlet 544 Sales and Other Dispositicn
of Assets identifies personal property,
collections, manuscripts as an allowable
contribution category for which the fair
market value can be deducted. History
has proven that Petitioner’s 1986
contribution was a donation of great
historical significance. Copies of
Petitioner’s 1986 contribution have been
accepted by the Library of Congress and
the National Archives to preserve the
place of these Personal Property,
Collection of Data, Manuscripts in
history.
° ii. After the Tax Court
Hearing on May 6, 1991 in Seattle, the
tax court Judge returned to Washington
17
D.C... There, on May 10, 1991 -- after
the trial, the Tax Court Judge wrote a
Bench Opinion and Oral Finding of Fect
Judgment disallowing Petitioner’s 1986
Contribution as an Income Tax Deduction.
The grounds that the Judge cited for
denial of Petitioner’s 1986 contribution
wes the fact thet the Judge considered
Petitioner’s 1986 contribution to be a
contribution of Petitioner’s Services.
See Appendix 3 for this May 10, 1991 Tax
Court Bench Opinion and Oral Findings of
Fact document.
12. Contribution of
Petitioner’s Services was never an issue
between Petitioner and the IRS nor vas
it discussed with even e scintilla of
reference during the May 6, 1991 Tax
Court Hearing. Since eppropriate
dictionaries define “service" to be:
"ugeful labor that does not produce a
18
tangibie commodity” Petitioner
recognized immediately that the Tax
Court Judges Bench Opinion & Oral
Findings of Fact were in error in the
most fundamental way. Petitioner’s 1986
Personal Property, Collection of Data,
Manuscripts donation was most definately
not a contribution of Petitioner’s
"Services". In addition, the Judge’s
Order violated Petitioner’s Amendment
XIV of the U.S. Constitution Rights to
Due Process and Equal Protection of the
Laws since the Judges Opinion changed
the “charges” after the trial. This
post-trial “*charges" change prevented
petitioner from having an adequate
opportunity to "prepare for" and an "in
court opportunity to defend against" the
*contribution of services" allegation
that are the basis of the Tax Court
Judge’s post-trial final opinion. These
gross violations of Petitioner's
<li (_ ‘OS _
19
Amendment XIV guarenteed Constitutional
Rights motivated Petitioner’s November
25, 1991 Notice of Appeal to the United
States Court of Appeals for the Ninth
Circuit.
° 13. To regress a bit, while
preparing for the May 6, 1991 Tax Court
Hearing in Seattle Petitioner contacted
severel professional manuscript
eppreisers in an attempt to obtain an
impertial Nth party evaluation of the
Fair Market Value of Petitioner’s 1986
Pergonel Property Collection of Date
Manuscripts Contribution. When these
professional appraisers learned that
Petitioner needed their appraisal for |
IRS and Tax Court purposes none of ther
would agree to make such an appreisal.
° 14. In November 1990
Petitioner discovered a wonderful source
20
of comperable though lesser grents and
studies that the U.S. Government had
been willing to fund. George Will wrote
@ newspaper article identifying several
less than necessary studies and grants
that the U.S. Government had recently
funded for significant sums of money.
All of his data was taken from the
"Heritage Foundations list of less
than-vital spending" items.
° iS. Petitioner was able to
obtain a copy of the Heritage Foundation
Document cited in the aforementioned
George Will newspaper article. This
compilation includes many items of
capitel improvements and other
expenditures that were not relevant to
establishment of the Fair Market Value
of Petitioner’s 1986 contribution.
‘ i6. Petitioner rendered the
21
Heritage Foundation document to arrive
at the list of 76 studies end grants
funded by the U.S. Government which were
relevant to establishing the Fair Merket
Value of Petitioner’s 1986 contribution
based on reel life comparable Fair
Market Value Trensactions. These were
analyzed and discovered to justify ea
fair market value in excess of two
billion dollers for Petitioner’s 1986
contributed Personal Property,
Collection of Data, Manuscripts. This
Fair Market Value determination ves
based on the IRS Publication 561 _
"Determining the Value of Donated
Property” Fair Market Value
determination methodology. That process
involves comparigon of Petitioner’s
contribution with sales of comperable
though lesser properties for which the
U.S. Government was willing to invest
its funds. See Appendix 12 for the
a2
aforementioned Publication 561 Fair
Market Value Determination Methodology
quote.
17. In March thru May of 1993
Petitoner became aware of newspaper
articles that indicated that high U.S.
Government officials were making
post-retirement massive contributions of
their manuscript collections ‘(official
pepers) to the Library of Congress, the
National Archives, and similar
non-profit institutions. It was
obvious from Petitioner’s knowledge of
the Tax Laws as well as IRS Rules and
Regulations/Publications that the
contributions of these historically
significant collection of data
manuscripts could qualify the ex-high
government official for substantial
income tex deduction entitlements. Such
entitlements would be directly analagous
23
to Petitoner’s 1986 Personel Property,
Collection of Date, Manuscripts
contribution to the U.S. Government.
Petitioner is in the process of
ecquiring relevant Federal Income Tax
Returns to gain the evidence required to.
cite said IRS allowed contributions
contained therein as precident cases
supportive of Petitioner’s i986
contribution. Petitioner was not able
to properly develope these Precident
Case Citations prior to the August 4,
1993 9th Circuit Court of Appeals
hearing due to a variety of factors.
: 18. On July 22, 1993
Petitioner filed a formal Motion for
Continuance with the Ninth Circuit Court
of Appeals to allow ea fair opportunity
for acquisition of the eaeforermentioned
additional citations.
24
19. On July 23, 1993 the Sth
Circuit U.S. Court of Appeals Deputy
Clerk issved an order stating: "This
case shell be submitted on the briefs
and record without oral argument on
Wednesday, August 4, 1993, in Seattle,
Washington." See Appendix 4 for that
Order.
° 20. Petitioner filed his 9th
Circuit Court Hearing Brief on July 26,
1993.
ai. On July 29, 1993
Petitioner filed a Motion for Remand of
this Case back to the U.S. District
Court for Jury Triel as guaranteed by
Amendment VII of the U.S. Constitution
and the Unjust Enrichment Common Law
nature of the case.
P aa On July 29, 1993 the 9th
25
Circuit U.S. Court of Appeals Judges
issued a Deputy Clerk signed Order
denying Petitioner’s Motion for
Continuance. See Appendix 5.
° aa On August 3, 1993
Petitioner filed hie Motion for
Reconsideration of the 9th Circuit Court
of Appeals July 29, 1993 Order denying
Petitioner’s Motion for Continuance.
° 24. On August 3, 1993
Petitioner filed his submittal of
Additional Citetions of Relevant
Decisions Rendered end/or Discovered
Since Filing of Petitioner’s Last Brief
plus Petitioner’s Motion for Leave for
Delayed Filing of Additional Citetions
Of Relevant Decisions.
° 25. On August 4, 1993 the
9th Circuit Court of appeals issued ea
26
Notice that Petitioner’s Cases 9391-70722
and 92-70546 were Submitted August 4,
1993 for Decision by Three Seattle 9th
Circuit Court Judges.
26. On August 6, 1993 the 9th
Circuit Court of Appeals Judges issued
an unsigned end therefore unlawful
memorandum decisions for Cases 91-70722
and 92-7546. That memorandum contesined
monumental misstatements of the fact of
the case, gross distortions of the facts
of this case, misinterpretation of the
Internal Revenue Code (Laws), extensive
violations of Petitioner’s
Constitutional Rights plus malicious
acts intended to damage and diminish
Petitioner’s case. See Appendix 6 for
this Memorandum for Case No. 9391-70722.
° 27. On August 9, 1993
Petitioner filed a Motion for
27
Continuance citing his efforts to
develope recent citations via Freedon of
Information Act Requests.
28. On August 9, 1993 the 9th
Circuit Court issued an unsigned and
therefore unlewful Order for Cease No.
91-70722 stating:
"IT IS ORDERED that:
the motion for remand to the
district court for jury trial is DENIED;
the motion to reconsider the
Genial of a continuance is DENIED:
The Motion for leave to file
edditional citations is DENIED and the
edditional citations memorandum-will be
rejected and not filed by the Clerk. *
The top of this Order was marked: *NOT
FOR PUBLICATION". See Appendix 7 for
@® record of that Order.
° 23. On August 18, 1993
28
Petitioner filed with the 9th Circuit
Court ea Petition for Rehearing of Case
No. 92-70546 and a Petition for
Rehearing with suggestion for Rehearing
En Banc for Case No. 91-70722.
30. On September 27, 1993
the 9th Circuit Court issued an unsigned
and therefore unlawful Order denying
Petitioners Motion for Rehearing of Case
No. 91-70722 and rejected Petitioner’s
suggestion for rehearing en banc. See
Appendix 8 for a record of that Order.
REASON FOR GRANTING THE WRIT
° Certioreri should be granted for
several reasons:
This Petition presents isssues
resolved by implication by this Court
but not specifically and unequivocally
decided by this Court; and the Opinion
below conflicts, by implication, with
previous decision of the Courts.
intentionally _mis-interpreted plus,
of _ the U.S. Government _at_taxpayers
—— ee ee ee ee ee —_——_—— ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee
30
Introduction:
In this section we will be dealing
with ea number of Internal Revenue Code
Statutes, IRS Rules and Regulations, IRS
Publications, Amendments of the United
States Constitution and the Rights they
Guarantee, Common Lew, Case Made Lay,
Federal Rules of Civil Appeliate
Procedure, appropriate dictionary legal
definitions, and the United States Tax
Court Rules of Practice and Procedure
requirements as they apply to the Sth
Circuit Court of Appeals, August 6, 1993
aa
MEMORANDUM Ruling which was unsigned by
the Judges plus unsigned August 9 as
well as September 27, 1993 9th Circuit
Court Orders.
Be First it should be stated that
justice has not been served by the IRS
during the processing of this case. This
is true with regard to the IRS because
there were many errors of fact, errors
of law, intentional distortions, and
malicious attempts to discredit and/or
diminish Petitioner’s case which were
included in the February 5, 1990 IRS
final Tax Deficiency Finding. See
Appendix 1 for a copy of that document.
The above identified errors and misdeeds
are identifiable by comparing the
content of Appendix 1 with the above
STATEMENT OF THE CASE.
II. Second it should be stated that
justice has not been served by the Tax
Court during the processing of this
aa
case. This is true with regard to the
Tax Court because there were many errors
of fact, errors of law, intentional
distortions, and malicious attempts to
discredit and/or diminish Petitioner’s
case which were included in the May 10,
1991 Tax Court Bench Opinion and Oral
Finding of Facts. See Appendix 3 for a
copy of that document. The above
identified errors and misdeeds ere
identifiable by comparing the content of
Appendix 3 with the above STATEMENT OF
THE CASE.
III. Third it should be pointed out
that the Justice Department Defaulted on
their case by admitting, via devault, a
preponderance of Petitioner’s 9th
Circuit Court of Appeals Brief. This
default came about by the Justice
Depertment’s failure to deny or rebutt
the content of major elements of
Petitioner’s 9th Circuit Court of
aa
Appeals Brief in the Justic Department’s
Answer Brief. The Justice Department’s
default on the case was specified, as
follows, and pointed out in Petitioner’s
9th Circuit Court of Appeals Reply
Brief:
"STATEMENT OF ISSUES*
“lI. U.S. JUSTICE DEPARTMENT DEFAULTS:*"
at ¥ U.S. Justice Department’s Answer
Brief only responded to Appellant’s
Statement of the Issues Items Numbered
1, 3, 7 and 8. Consequently Appellant’s
Statement of the Issues Items Numbered
2, 4, S, 6 9, 10 and 11 ere considered
to be admitted by the U.S. Justice
Department by default."
at” fe U.S. Justice Department’s Answer
Brief only responded to Appellant’s
Statement of the Case Items Numbered 1,
4, 5S, 6, 7, 9, lines 1 thru 3 of 10, and
11. Consequently Appellant’s Statement
of the Case Items Numbered 2, a 8,
34
lines 4 and on of Item 10, 12, 13, 14,
iS, 16, and 17 are considered to be
admitted by the U.S. Justice Department
by default.”
"3. U.S. Justice Department’s Answer
Brief only responded to Appelilant’s
Arguments Numbered 1, 2, 3, 4, 5, 6,
7, 10, 113, 12, and i7. Consequently
Appellant’s Arguments Numbered 8&8, 9, 13,
14, 15, 16, 18, and 19 ere considered to
be admitted by the U.S. Justice
Department by default.”
IV. Fourth it should be stated that
justice hes not been served by the IRS,
the Tax Court or at the 9th Circuit
Court of Appeals level. This is true
with regard to the 9th Circuit Court of
Appeals beceuse there were many errors
of fact, errors of law, intentional
distortions, and malicious attempts to
discredit and/or diminish Petitioner’s
case which were included in the August
7 id
be
35
6, 1993 9th Circuit Court of Appeals
(UNSIGNED AND THEREFORE UNLAWLFUL)
MEMORANDUM Ruling. See Appendix 6 for a
copy of that MEMORANDUM. The following
quotes from that MEMORANDUM Ruling are
contested, denied, or rebutted by the
preceeding STATEMENT OF THE CASE section
of this Petition or by Petitioner’s
accompanying rebuttal comments holes:
MEMORANDUM Ruling Quote (MRQ):
"Rokke compiled a document entitled
""Macro Economics Study Collection of
Data."" It consisted of his five-page
analysis and appended materials
(Primarily magazine and newspaper
clippings).”
Petitioner’s rebuttal statement: The
above "and appended materials (magazine
and newspaper clippings comment)." is ea
complete fiction.
- MRO: "Rokke appealed to the
tax court."
36
Petitioner’s rebuttel statement: The
ebove statement is O.K. es fer eas it
goes but it fails to mention the gross
earmount of resources Petitioner has been
forced to expend via Motion for
Transfer/Remand of the case to the U.S.
District Court to implement Petitioner’s
deranded jury triel besed on the common
law Unjust Enrichment espects of this
case and the jury triel guarantees for
common lew cases which is contained in
Amendment VII of the U.S. Constitution.
- MRO: "The Tex Court heid that
Rokke’s contribution was eae service.
Petitioner’s rebuttel statement: This
is ea nice benign stetement but it faiis
to mention the fact that the issues of
services was only reised by the Tax
Court Judge four days after the trial
hed been completed. This changing of the
"charges" after the triel denied
—
37
Petitioner his rights to an adequate
opportunity to prepare his case against
the "contribution was a contribution of
services” charges and present his
defense on this issue during the trial.
This changing of the "charges" after the
trial denied Petitioner his rights to Due
Process and Equal Protection of the Laws
as guaranteed by Amendment XIV of the
U.S. Constitution.
° The IRS, during its pre-trial
handling of this case and during the
triel, mainteined that Rokke’s
contribution was being denied because it
was considered, by the IRS, to be a
contribution cf "ordinary income
property". Four days after the trial
was over and the litigants had departed
the Tax Court Judge decided that Rokke’s
contribution should be denied on the
basie that it was e contribution of
"services" instead of eae contribution of
38
"ordinary income property". ...."
Mr. Rokke consistently argued that the
contribution was not a donation of
"ordinary income property” because
Black’s Law Dictionary states that:
"Ordinary Income. Term embraces
income from regular sources such ss
wages, commissions, interest, dividends
and the like." See Appendix 11.
Mr. Rokke appropriately entered into
evidence his life long collection of W2
and IRS 1040 Tax Return Copies which
proved that he had spent his entire
pre-retirement career employed eas a
Professional Engineer with companies in
the Aerospace and Petro-Chemical
industry. Rokke srgued that he had
never earned one cent of “ordinary
income" from employment in the banking,
savings and loan, or other aspects of
the financial industry. Rokke argued
that the Collection,of Data, Manuscripts
39
that he contributed to President Reagan
in 1986 was a contribution of Rokke’s
Pergwonal Property, Collection of Data,
Manuscripts which IRS Publication 544
Sales and Other Disposition of Assets
clearly indicates that Petitioner could
deduct at their fair market value. This
was especially reinforced by a
paragraph in IRS Publication 561
Determining the Value of Donated
Property which states in part:
"Manuscripts, autographs, diaries, and
Similar items that are handwritten, or
at least signed by famous people, often
are in demand and are valuable. The
writings of unknowns also may be of
value if they are of unusual historical
Or literary importance." See Appendix
12 for a full quote of this Publication
561 paragraph. Petitioner argues that
his contributed manuscripts are of
"unusual historical importance” because
40
the U.S. Government utilized the
national economic crisis analysis and
the national entity survival scenario,
contsined therein, to cope with the "1986
and on" Banking plus S&L industry
debt crisis. Petitioner’s nationel
entity survivel scenario enabled the
U.S. Government to solve the national
economic crisis without collapse of the
free world economies or run avway
inflation. Petitioner alleges that the
above cited "objected to" sentence of
the August 6, 1993 MEMORANDUM Ruling was
constructed to intentionally mask the
fact that the Tex Court Judge changed
the grounds for disallowing Petitioners
contribution after the triel was over
instead of during the triel es the
"objected to" sentence would imply.
Petitioner argues that this is one
specific example of the malice that the
Judges of the 9th Circuit Court of
paca
41
Appeals demonstrated against Petitioner
in a consistent effort to damage and/or
diminish Petitioner’s case on appeal.
In the "II. Charitable Contribution
Deduction” section of the 9th Circuit
Court’s August 6, 1993 MEMORANDUM Ruling
there is an obvious misinterpretation
and misepplication of the laws that are
relevant to this case. This mis-
interpretation and misapplication is
identified in the last three sentences
of the first paragraph of MEMORANDUM
Section II quoted below:
MRO: "He (Rokke) argues that
the tax court erred in characterizing
his constribution as a service. He
believes that it was a capital asset.
We affirm the tax court on other
grounde. *”
Petitioner’s rebuttal statement:
Petitioner maintains that this is a
major error of fact and law as well as a
42
major misapplication of the lav.
Petitioner maintains that this is a
situation in which the Tax Code is
chronically and erroneously sis-
interpreted and misapplied. This came
ebout vie the error of utilizing IRC
gwection 170 to define "ordinary income
property" instead of using Bleck’s Lev
Dictionary legal definition of that
category of property as discussed above.
This is coupled by the fact that Rokke’s
contribution was ea legitimate
contribution for which he could deduct
its feir market value by virtue of the
fact thet it was of "unusual historical
importance’. A contribution of ordinary
income property of *unusuval historiceal
importance’ is deductible at its fair
market value as sanctioned by IRS
Publication 561 Determining the Value of
Donated Property, see Appendix 12, as
43
Commissioner, 64 T.C. 182 (1975), Bee
—— ee ee ee ee ee ee ee ee oe
Appendix 13, and Goss_v. Commissioner,
59 T.C. 594 at page 596, see Appendix 14.
MRO: "The contribution was
neither a service, nor a Capital asset,
eas Rokke Contends. He contributed
Ordinary income property, for which he
is entitled to deduct, at most, his cost
basis. The Commissioner correctly
limited Rokke’s deduction."
Petitioner’s rebuttal statement: The
foregoing is a case in point of the
chronic misinterpretation and
mis-application of the Tax Laws in cases
inolving contributions of property. The
IRS and the Tax Court self-servingly
indulge a highly unlawful definitin of
"ordinary income property” to fill their
coffers at tax payers expense. In this
case the property Petitioner contributed
could in no way be considered property
of the type from which Petitioner ever
44
derived ordinary income during his
entire professional engineering career.
- MRO: "A letter in the
possession of its author is specifically
excluded frca the definition of a
capital asset under I1.R.C. section
1221(3)." and the rest of that paragraph
is rebutted below by Petitioner:
Petitioner’s rebuttal statement: That
portion of the Tax Code, when properly
interpreted, only applies to letters
that one writes during the production of
his ordinary income. Letter’s written
by taxpayer’s that are not associated
with production of the tax payer’s
ordinary income are, by any rational
persons interpretation, that person’s
personal property. Are letters written
by U.S. Soldiers in Somalia to their
dear old mothers back home the soldier’s
ordinary income property or the
soldier’s personal property? Be
45
rational and reasonable for a change.
"Get a life” as my daughter would say.
- MRO: "Rokke also appended
several hundred pages of newspaper and
magazine clippings to this letter." and
the rest of that paragraph are rebutted
below:
Petitioner’s rebuttal statement: This
is the most outrageous and irresponsible
statement of a non-fact of this case
that the panel of 9th Circuit Court
Judges could possibly make. It is
included in this MEMORANDUM maliciously
and with malice aforethought in an
attempt by the judges to minimize, smear
and diminish as well as distort
Petitoners case. The 9th Circuit Court
Judges are attemptin to imply that
Petitioner is an imbecile. Only an
imbecile would send several hundred
pages of newspaper and magazine
clippings to a President who
46
administered his entire tenure in office
via cryptic "one liners” written
on the back of his 3"x5S" cue cards.
The total cost of postage for this
contribution per copy mailed was $1. 84
of which $1.09 was for certified mail
fees. No way could Petitioner have
appended several hundred pages of
newspaper and magazine clippings to
Petitioner’s contributed 5 page
collection of manuscripts and mailed
that mess from Denver to Washington D.C.
for $0.79 postage. Receipts for the
postage of this contribution were included
in the officiel evidence that was
furnished to the court to implement the
Tax Court Trial. This is such an
irresponsible act on the part of the 9th
Circuit Court Judges that Petitioner
demands penalties for malice in the
finel settlement of this case.
- MRO: "Based on these findings,
<= °° 7”
47
we hold that Rokke contributed ordinary
income property to the United States.”
and the rest of that paragraph.
Petitioner’s rebuttal statement:
Petitioner has proven that the Sth
are principally in error and
unsustainable via the above comments
relative to this MEMORANDUM. It follows
then that the Judges "Based on these
findings, we hold that Rokke contributed
ordinary income property ..." must also
be completely in error. This is based
On the 9th Circuit Court of Appeals
Judge’s misinterpretation of the facts
and laws that pertain to this case. The
above contested MEMORANDUM Ruling quote
is therefore unsustainable.
- MRO: "The Tax Court
incorrectly held that Rokke contributed
@ service. A contribution »-++-+- (Donation
of blood is a service under section 170)."
48
Petitioner’s rebuttal statement:
Petitioner in general concurs, with
minor reservations, with the above
identified paragraph from the 9th
Circuit Ccurt of Appeals August 6, 1993
MEMORANDUM.
- MRO: "The tax court
incorrectly held that Rokke contributed
ea service. A contribution can not be
both a service and ordinary income
property. Where contributions have
consisted of both property and services,
courts have heid them to be property
where there is a "coalescence" of the
property and service into a separate
piece of tangible property. .... Goss_v.
Commissioner, 59 T.C. 594, 596 (1973)
(completed essays formed something
different from taxpeyer’s services and
blank paper on which they were
printed). See_also Jarre v.
Commissioner, 64 T.C. 183 (1975) (music
49
manuscripts); ...”
Petitioner’s rebuttal statement:
Petitioner has consistently, throughout
processing of this case thru the IRS,
Tax Court, and the 9th Circuit Court of
Appeals, cited Goss_v. Commissioner and
precedent case made law. In the Goss
case the taxpayer was allowed to claim
as a legitimate deduction from his taxes
the F.M.V. of two essays on economics.
The contributor, who was a professional
economists, had composed to support the
efforts of a negro women’s organization.
Commissioner. So here Goss was allowed a
F.M.V. deduction for his "ordinary income
property” collection of manuscripts even
though they were not of unusual
historical importance. In the Jarre
case the taxpayer was a world famous
composer of music for the cinema
50
industry. So music manuscripts were
Jarre’s "ordinary income property".
Some of these manuscripts were of
considerable fame and therefore “unusual
historical importance" such as the
musicel score Jarre composed for the
movie Dr. Zhivago. At one point in his
career Jarre decided to donate the
Original music manuscripts from Dr.
Zhivago and other similar classics to a
University. Jarre claimed a deduction
for same at their fair market vaiue (at
that point undetermined). In the finel
analysis the courts allowed Jarre’s
contribution of his ordinary income
property music manuscript collection and
even interceeded on Jarre’s behalf in
the role of an expert witness and/or
professional appraiser to determine the
Court esllowed fair warket value of the
contributed unusually historicelly
important manuscript collection. See
| cineca
31
Jerre_v. Commissioner definately
identifies the legitimacy, as an income
tax deduction, of Petitioner’s 1986
collection of manuscripts contribution
even if that contribution was in the
final analysis determined to be
Petitioner’s ordinary income property.
Definately history will prove
Petitioner’s "national economic crisis"
identification/solution collection of
manuscripts to be of much more "unusual
historical importance" than the musical
manuscript collection from the movie Dr.
Zhivago that Jarre contributed.
MRO: "The value of Rokke’s
collection of articles, the blank peper
on which he typed his letter, and his
analysis of the national economic crisis
elso ""coalesced""* into ea separate piece
of property. That property was a
S2
tangible ""study,"*" which he could nave
attempted to sell, and to which attached
zome (albiet minimal) market value."
Petitioner’s rebuttal statement: In
this paragraph the Judges of the 9th
Circuit Court of Appeais make some very
Bignificant "Spontaneous Declaration"
type admissions. See Appendix 15 for
Black’s Law Dictionary definition of
"Spontaneous Declaration®. The phrase:
"his analysis of the national economic
crisis" indicates that the 9th Circuit
Court of Appeals Judges agree that
Petitioner was probably the first person
to identify the truly threatening
*national economic crisis". This being
the case it goes without saying that
petitioner was, for sure, the first
person to prove the existance of same to
the President of the United States plus
other high government officials. By the
gweme token then Petitioner was, for
a
po
sure, the first person to provide these
the President et al with a national
entity survival scenario which embodied
a "neat solution” to this free world
economic crisis. Those officiais used
Petitioner’s national entity survival
scenario to successfully avoid collapse
of the entire free world economies
without run away inflation and/or other
major economic ills. Indeed our current
time period in history is blessed with
some of the oeneiihnt Banks and Savings
and Loan institutions in the history of
this nation. They are prospering, as
never before, from this nations current
miniscule inflation rate and attendant
very favorable Bank/S&L borrowing and
lending interest rate differentials.
The other portion of the above
identified MEMORANDUM paragraph states:
"That property was a tangible "*"study"®*,
which he could have attempted to sell,
54
and to which attached some ‘(albeit
minimal) market value." Since the U.S.
Government has been enriched
approximately $924 Billion by seizing
the assets of illiquid Banks and Savings
and Loan organizations while the
Texpeyer has been neatly stuck with
hundreds of billions of dollars worth of
40 year bonds to pay off the collapsed
Bank and S&l insured depositors how come
the Petitioner’s contribution, which
engineered this remarkable bit of U.S.
Government Unjust Enrichment, is being
considered to have hed “some (albeit
minimal) merket value"? This is
especially true since Petitioner
submitted to the 9th Circuit Court of
Appeals ample proof, based on Heritege
Foundation identified sales of
comparable though lesser studies and
like items to the U.S. Government, that
Petitioner’s contribution hed a Fair
55
Market Value in excess of $2 Billion?
The Justice Department agreed with this
$2 Billion (+) fair market value via
compareble sales analysis by default
prior to and during the August 4, 1993
hearing. The above objected to 9th
Circuit Court of Appeals Judge’s
statement was maliciously included by
the 9th Circuit Court of Appeals Judges
to, with malice aforethought,
denegrated, diminish, and dicredit the
"unusual historical importance” of
Petitioners 1986 collection of
manuscripts contribution.
MRO: "Rokke contends that he
is not liable for a negligence penalty
under section 6653(a). He submits that
the tax court and the Commissioner
""agreed that his deduction was
legitimate, "" by allowing him to deduct
his $3,421 cost basis, and that the tax
court disallowed the IRS penalty for
56
overvaluation. He argues that these
facts show that he was not negligent.
There is no merit to this ergument. We
review ea tax court’s affirmance of
negligence penalties under the clearly
erroneous standard."
Petitioner’s rebuttal statement:
Petitioner argues that any reasonable
juror would agree with Petitioner’s
above cited line of reasoning as to the
absence of Petitioner’s negligence in
claiming Petitioner’s completely legal
1986 "unusually historically important’
personal property manuscrirt collection
contribution. In addition, the last
sentence in the above MRO quote entities
the Petitioner to have been freed by the
9th Circuit Court of Appeals from the
negligence penalty. Black’s Law
Dictionary defines “clearly erroneous"
standard to mean:
. "Clearly erroneous. Findings
as
when based upon substantial error in
proceedings or misapplication of law; or
when unsupported by substantial
evidence; or sidthrens to clear weight of
evidence or induced by erroneous view of
the law.”
Petitioner maintains that the Black’s
Law Dictionary definition of the
standard "Clearly erroneous", which the
9th Circuit Court of Appeals professes
to use in deciding this penalty issue,
Gives the Court a multitude of grounds
on which, in the interest of justice,
the court could and should have allowed
Petitioner to prevail and be free of
this unjust section 6653(a) penalty.
This is especially true since
Petitioner’s contribution saved the
entire free world from economic
collapse. Petitioner mainteins that
this is e graphic example of the
malicious, mean spirited, treatment that
38
the court has heaped on Petitioner
throughout these proceedings. Based on
this manifestation of malice and other
aforementioned similar actions
Petitioner will be demanding all
possible penalties for malice against
the U.S. Courts/U.S.Government during
the final settlement of this dispute.
- MRO: "The tax court affirmed the
Commissioner’s assessment of a
negligence penalty under section
6653(a), based on evidence that Rokke
hed made a similar contribution in 1973
to the Navel Weapons Center in China
Lake. In that case the tax court made
Clear to Rokke the significance of the
fact that he had contributed ordinary
income property. From this, the court
concluded that Rokke had substantial
experience with the tax law in this area
and upheld the Commissioner ’s
assessment. There was no clear error in
39
its ruling."
Petitioner’s rebuttal statement:
Petitioner’s 1973 contribution was
indeed a contribution of ordinary income
property. It was a contribution of a
coliection of manuscripts of
Petitioner’s, partially independently
funded, System Engineering Studies which
succeeded in identifying the optimum
design for the Advanced Medium Range Air
to Air Missile System (AMRAAM).
Petitioner considered that his finance
and banking based 1986 collection of
manuscripts contribution was not a
contribution of Petitioner’s ordinary
income property based on Black’s Law
Dictionary definition of "ordinary
income" and other factors. In addition
history has proven that Petitioner’s
1973 AMRAAM Systems Engineering Study
menuscript collection contribution was
of "unusual historical importance®. An
60
article from Aviation Week, which
Petitioner has entered into evidence in
this case, states:
. "AMRAAM, under full scale
development for the U.S. Navy and Air
Force, is expected to increase the
effectiveness of the F-16 by a factor of
six." See Appendix 17.
Most top aerospace engineers would
Give up the L.H. half of their male gear
to increase the effectiveness of a major
production fighter, like the Fi6, by 10 %.
Consequently it goes without saying that
Petitioner’s System Design for the
AMRAAM which makes one F-16 with it as
effective as six F-16’s operating
without the AMRAAMN is of "unusual
hisorical importance" in the serospace
and militery science community. Without
AMRAAM, for the needed force structure,
Petitioner estimates that it would have
required the U.S. Government to invest
ee iitaielaelenlalaiiiaieiaali dealin eeeeee ale
61
an additional $143.4 Billion ten year
system costs in the required F-16
fighter forces. Petitioner will be
claiming a 20% finders fee for this
$143.4 Billion in savings since
Petitioner’s 1973 collection of
manuscripts contribution was erroneously
disallowed by the tax court since that
collection of manuscripts have proven to
be of such "unusual historical
importance”.
Just to cite one more of the plethora
of articles Petitioner has collected to
substantiate the “unusual historical
importance" of Petitioner’s 1973 AMRAAM
manuscrpit collection contribution the
following excerpt from an April 1989
issue of AEROSPACE ENGINEERING is
included at this point (see Appendix 16
for the full text of this magazine
article):
‘ *" ... AMRAAM is the next
62
generation air-to-air missile for use by
the Air Force, Navy, and NATO forces.
AMRAAM will be a "launch and leave"
racer guided missile, designed to
maintain air superiority well into the
next century. ..."
Truly Petitoner’s 1973 AMRAAM Systems
Engineering Study manuscript collection
contribution was of “unusuvel historical
importence’”., This fact qualified that
contribution es a valid and fair market
value deductible donation for which
Petitioner should have been ailoved
credit. The tax court erred in
digallowing Petitioner’s 1973 AMRAAM
Systems Engineering Study manuscript
collection contribution. Therefore the
9% Circuit Court of Appeais erred in
citing that contribution eas grounds for
gwanctioning the IRS/Tex Court assessed
gection 6653/(a) penalty against
Petitioner’s 1986 donation. Petitioner
63
Claims that this is another
manifestation of the mean spirited
malice against Petitioner that has been
perpetrated by the 9th Circuit Court of
Appeals. On this basis, combined with
the earlier identified instances of the
Sth Circuit Court of Appeals acts of
malice against Petitioner, Petitioner
intends to seek the full penalties for
malice in the final settlement of this
dispute. Petitioner maintains that
there was clear error in the IRS, Tax
Court, and 9th Circuit Court of Appeals
levy of section 6653(a@) sanctions
against Petitioner.
Petitioner contests, denies, and
categorically rebuts all the content of
the following identified sections of the
Sth Circuit Court of Appeals August 6,
1993 MEMORANDUM Ruling:
"IX. Motion for Removal to
District Court. ...*
64
° "Vv. Costs ...*
"VI. Motion for Reconsideration
sae
Vv. Petitioner contests, denies, and
rebutts all the content of the August 9Q,
1993 and the September 27, 1993 9th
Circuit Court Orders that were issved in
this case.
VI. Petitioner argues that the 9th
Circuit Court of Appeals August 6, 1993
MEMORANDUM Ruling es well as the August
9, 1993 plus the September 27, 1993
Orders are unlawful since none of these
documents were signed by an officer of
the Court.
CONCLUSION
For the reasons set forth
above, e writ of certioreri should issue
to review the August 6, 1993 MEMORANDUM
Rulings and the August 9, 1993 as well
eas the September 27, 1993 Orders of the
United States Ninth Circuit Court of
Appeals that were issued in this case.
65
Please see Footnote 1. belovw.
Respectfully
Submitted,
Dated:> Novensger (993 Seog: BS
DONALD LELIF ROKKE,
Pro Se, Attorney
for Petitioner
Footnote: 1. If this Court elects not
to addrese the issues presented in this
writ at the present time, it is
requested that the writ issue and that
the matter be remanded to the U.S.
Circuit Court for the Ninth Circuit for
redetermination in light of the
arguments contained in the REASONS FOR
GRANTING THE WRIT section of this
Petition.
ete inaeianeciieteimetel
IN THE SUPREME
COURT OF THE UNITED STATES
CCTOBER TERM, 1993
DONALD LEIF ROKKE - PETITIONER
vs.
COMMISSIONER OF INTERNAL REVENUE -
RESPONDENT
PETITON FOR WRIT OF CERTIORARI
TO THE UNITED STATES CQURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
APPENDIX
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APPENDIX
TABLE OF CONTENT
Appendix No. Page_No.
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4
F
APPENDIX
PAGE 1 OF 7 ih
Internal Revenue Service Department of
the Treasury
Date: FEB. @5 1990 In Reply Refer to:
AP:SEA:90-D:JLS:CMR
Person to Contact:
JEFFERY I. SHERRILL
Cont. Phone Number:
(206) 442-2382
TIN: 522-200-0564
Tax Year Deficiency Penalty Section
Ended: 6653(a) 6659
12/31/86 $4621.22 $194.00 $1166.00
12/31/87 $4654. 00 $197.00 $1180. 0@
For returns required to be filed after
December 31, 1981, if the penalty under
Section 6653(a) applies, the penalty
under Section 6653(a)(1)(B) will also
apply in an amount to be determined.
APPENDIX 1
PAGE 2 OF 7 2
Dear Taxpayer:
We have determined that there is a
deficiency (increase) in your income tax
se shown above. This letter is a NOTICE
QF DEFICIENCY sent to you as required by
law. The enclosed statement shows how
we figured the deficiency.
If you want to contest ths deficiency
in court before making any payment, you
have 9@ days from the above mailing
date of this letter (159 days if
addressed tc you outside of the United
States) to file a petition with the
United States Tax Court for a
redetermination of the deficiency. The
petition should be filed with the United
States Tax Court, 49090 Second Street NW,
Washington, D.C. 20217, and the copy of
this letter should be attached to the
petition. The time in which you must
file a petition with the court (990 or
APPENDIX 1
PAGE 3 OF 7 4
15@ days as the case may be) is fixed by
law and the Court cannot consider your
case if your petition is filed late. If
this letter is addressed to both a
husband and wife, and both want to
petition the Tax Court, both must sign
the petition or each must file a
separate petition.
If you dispute not more than $190, 002
for any one year, a Simplified procedure
is provided by the Tax Court for small
tax cases. You can get information
about this Pprocesdure, as well as a
petition form you can use, by writing
the Clerk of the United States Tax Court
at 42@ Second Street NW, Washington,
D.C. 20217. You should do this promptly
if you intend to file a petition with
the Tax Court.
If you decide not to file a petition
with the Tax Court, we would appreciate
it if you would sign and return the
APPENDIX 1
PAGE 4 OF 7 4
enclosed waiver form. This will permit
us to assess the deficiency quickly and
will limit the accumulation of interest.
The enclosed envelope is for your
convenience. If you decide not to sign
and return the waiver and you do not
timely petition the Tax Court, we will —
assess and bill you for the deficiency
after 90 days from the above mailing
date of this letter (150 days if this
letter is adddressed to you outside the
United States).
If you have any questions, please
contact the person whose name and
telephone number are shown above.
Sincerely yours,
Fred T. Goldberg, Jr.
Commissioner
By
MARVIN WEISBART
Associate Chief, ;
APPENDIX 1
PAGE 5 OF 7
Appeals Office
Letter 893(RO) (Rev. 9-84)
Enclosures
Seattle Appeals Office
915 Second Avenue, Room 2790,
M/S 682
Seattle, Washington 98174
APPENDIX 1
PAGE 6 OF 7
FORM 886-A EXPLANATION OF ITEMS
Name of Taxpayer YEAR/PERIOD ENDED
Billie G. & Donald Rokke 1986 1987
A. Medical/Dental
We MOVE wzctiveceses limitations - see
exhibits 1A & 1B.
B. Contributions
We have disallowed contributions in
the amounts of $20,356 & $22,408 for the
tax years 1986 & 1987 respectively as
it has not been established that the
contributions were made to a qualifing
organizatin and you may not deduct the
value of your time or services donated
to charitable causes. We have allowed
amounts verified by you in the amounts
of $1,737.75 & $693.00 in the tax years
1986 & 1987 respectively.
APPENDIX }
PAGE 7 OF 7
You have also been allowed $3, 421.92
for your contribution of a study to the
United States Government. As this is
ordinary income Property you must reduct
the fair market value of the property
given by the gain you would hve received
if you had sold it. This contribution
Claimed of $250,000 for 1986 (with
appropriate carryovers to 1987 and
beyond) has also been dissallowed as you
haven’t shown a valid/qualified
appraisal for this contribution.
APPENDIX 2
PAGE 1 OF 3
UNITED STATES TAX COURT
WASHINGTON, D.C. 20217
DONALD LEIF ROKKE, )
Petitioner » Docket No.
») 6862-90
Vv. )
COMMISSIONER OF INTERNAL )
REVENUE, Respondent )
On March 20, 1991, petitioner filed a
motion to transfer his Tax Court case to
the U.S. District Court. This Court
denied petitioner’s motion on March 22,
1991. On April 2, 1991, petitioner
filed a Motion for Reconsideration of
this denial on the basis that his
constitutionally guaranteed right to a
i
iene
APPENDIX 2
PAGE 2 OF 2
trial by jury has been violated.
Clearly, there is no merit to
petitioner’s request for a jury trial in
the Tax Court. See Wickwire vy. Reinecke,
275 U.S. 101, 105 (1927); Phillips v
Commissioner, 2823 U.S. 589, 599 n.9
(1931); Dorl_v. Commissioner, 57 T.C.
720, 721-722 (1972), eaff’d. 507 F.2d 406
(2nd Cir. 1974). Moreover, once a
petitioner files a Tax Court petition,
the Tax Court has exclusive jurisdiction
and no other court involving the
determination of tax due for the year
covered by that petiton may be brought
by petitioner. Sec. 6512(a),I.R.C.
Thus, section 6512(a), I.R.C., operates
86 a limitation on the general
Jurisdictional grant of section 1346,
I.R.C., which grants the District Court
Jurisdiction over suits to recover
texes. Premises considered, it is
i tt—i(‘“CO™O™SCSCSC—S
APPENDIX 2
PAGE 3 OF a
1@
hereby
ORDERED that petitioner’s Motion for
Reconsideration is denied.
Joel Gerber
Judge
Dated: Washington, D.C.
April 9, 1991
APPENDIX 3
PAGE 1 OF 20 11
UNITED STATES TAX COURT
WASHINGTON, D.C. 20217
June 10, 1991
DONALD LEIF ROKKE, )
Petitioner ) Docket No.
) 6862-92
Vv. )
)
COMMISSIONER OF INTERNAL )
REVENUE, Respondent )
Notice of Service of Transcript
Pursuant to Rule 152(b), Rules of
Practice and Procedure of this Court,
there is transmitted herewith to
petitioner and to the respondent a copy
of the pages of the transcript of the
trial of the above case before Judge
Joel Gerber, at Seattlle, Washington, on
May 10, 1991, containing his oral
i
APPENDIX 3
PAGE 2 OF 20 12
findings of fact and opinion rendered at
the conclusion of the trial.
In accordance with the oral findings
of fact and opinion, decision will be
entered under Rule 155.
(Order signed by:)
Charles S. Casazza
Clerk of the Court
Served Jun 11 1991
APPENDIX 3
PAGE 3 OF 20 13
Bench Opinion by Judge Joel Gerber
Docket No. 6862-990 May 190, 1991
THE COURT: The Court has decided to
render an oral opinion in this case, and
the following represents the Court’s
Oral findings of fact and opinion.
This bench opinion is made pursuant to
the authority granted in section 7459(b)
of the Internal Revenue Code of 1986, as
amended, and in effect for the years
under consideration, and under Rule 152
of this Court’s Rules of Practice and
Procedure.
Respondent in a statutory notice of
deficiency determined deficiencies in
petitioner’s 1986 and 1987 income tax in
the amounts of $4,621 and $4,654,
respectively. Respondent also
determined additions to tax under
APPENDIX 3
PAGE 4 OF 20
14
section 6653(a)(1)(A) in the amounts of
$194 and $197 for 1986 and 1987,
respectively, plus fifty percent ci the
interest due on the redetermined
deficiency under section 6653(a)(1)(B).
Respondent also determined additions to
tax under section 6659 in the amounts of
$1,166 and $1,180 for the 1986 and 1987
taxable years, respectively.
After consideration concessions by
petitioner, there remains in controversy
the question of whether petitioner is
entitled to any amount in connection
with his claimed contributions of
studies or reports he has authored and
supplied to the federal government, and
whether petitioner is liable for
additions to tax.
Petitiioner’s legal residence was
Seattle, Washington at the time his
APPENDIX 3
PAGE 5 OF 20 15
petition in this case was filed.
Petitioner authored a study or report
he has denominated, I quote, "Collection
of data macroeconomics study
manuscript(s),"” end quote. The document is
&@ compendium of materials from the
Public domain that petitioner has
collected over a twenty-year period
concerning national economic conditions
and problems. The compendium is tied
together by a five-page summary or
composite which describes impending
economic crisis and certain solutions.
During 1986 petitioner transmitted
copies of the report to various
highly-placed federal government
officials, including the President, the
Director of the CIA, and the Treasury
Secretary. The report was unsolicited
by the intended recipients. Petitioner
describes the report as one which, I
APPENDIX 3
PAGE 6 OF 20 16
quote, "(PljJresented to the nation’s
executives the facts that prove that the
nations’s financial institutions were in
debt to such a degree that failure - a
preponderance of the industry,
Organizations, entities was unavoidable. "
Petitioner also transmitted another
report or study to the federal
government officials during 1987.
Petitioner ccntended that the study
contributed in 1986 had a cost basis of
$250,208, and that the report
contributed in 1987 had a cost in excess
of $200, 900. Petitioner claimed the
maximum contribution deduction
permissible under section 170, or fifty
percent, against his reported income for
1986 and 1987. Respondent examined
petitioner’s 1986 and 1987 income tax
returns and disallowed all of the
claimed contributions, with the
|
APPENDIX 3
PAGE 7 OF 22
17
exception of his out-of-pocket expenses
in the amount of $3,421.92 for the year
1986. No amount was allowed or agreed
to by respondent for 1987.
Petitioner bears the burden of showing
respondent’s determination to be in
error. Welch v. Helvering, 292 U.S.
111 (1933); Rule 142(a), Tax Court Rules
of Practice and Procedure.
Respondent does not dispute that
petitioner authored the reports and
transmitted them to the federal
government. Instead, respondent argues
that—section 17@(e) provides that in the
case of "ordinary income property” the
amount of charitable contribution of
property is to be reduced by the amount
Of gain which would not have been long-
term capital gain if the property
contributed had been sold by the
ee
APPENDIX 3
PAGE 8 OF 20 18
taxpayer at its fair market value.
Under section 1.17@A-4(b)(1), Income Tax
Regulations, ordinary income property
includes manuscript, letter, or
memorandum prepared by the doner. If we
should decide thatthe reports were
capital gains property in petitioner’s
hands, then respondent argues that
petitioner has not established the fair
market value of the reports and that the
claimed contributions hould be
disallowed on that basis. Respondent
also points out that section 1221
provides that the term "capital asset”
does not include a copyright, literary,
musical, artistic composition, letter,
memorandum, or similar property.
Petitioner contends that if
respondent’s interpretation of the
statutes and regulations is correct,
that the United States Government has
APPENDIX 3
PAGE 9 OF 2@ 19
been unjustly enriched, and that he
seeks a counterclaim or offset for the
difference between the amount agreed to
by respondent (the out-of-pocket
expenses) and the alleged $252,000 fair
market value.
We find respondent’s position to be
correct and hold that petitioner is
limited to a deduction of $3,421.92 for
his outof-pocket expenses in the 1986
taxable year.
It is further held that petitioner is
not entitled to any amount of the
claimed contribution for the 1987
taxable year.
Section 170, Internal Revenue Code of
1986, eallows as ea deduction any
Charitable contribution. Under
section 170(c), a "charitable
ee
APPENDIX 3
PAGE 1@ OF 20 70
contribution” is defined to bea
contribution or gift to or for the use
of certain specified classes of
organzizations. The United States of
America is one such recipient to which
contributions within the meaning of
section 170 may be made. See section
17O(c)(1).
—————
Section 170(e) concerns contributions of
certain types of property and limits
contributions to the fair market value
of the property which is a capital asset
in the hands of the donor or to,
essentially, the out-of-pocket
expenditures if the property is ordinary
income property in the hands of the
donor. In the setting of this case, vwe
must essentially determine whether the
contribution was a gift of services or
of property by petitioner. See Goss v.
Commissioner, 59 T.C. 594 at page 596
eee ee
APPENDIX 3
=
PAGE 11 OF 20 24
(1973).
By way of analogy, petitioner contends
that his report is like a personal
letter of a famous person which has
value because of its historical
importance rather than because of the
euthor’s services or business activity.
Although petitioner admits that he is
not ea famous person, he believes that
hig report played a Significant role in
Our nation’s history and is similar to
@ letter written by a famous person.
Petitioner also argues that he is an
engineer and not an economist, and that
his report concerns economic principles.
Petitioner argues that the report is,
therefore, not a rendering of services
for which he would have received
ordinary income within the meaning of
secton 179. In support of his position,
petitioner cites two cases and a revenue
APPENDIX 3
PAGE 12 OF 20 ao
ruling, as follows: Goss v.
Commissioner, supra; Jarre v.
Commissioner, 64 T.C., page 183 (1975);
and Revenue Ruling 84-1, to be found at
84-1 CB, page 39.
The Goss case is the most closely
aligned to the facts of this case. In
Goss, the taxpayer wrote two essays
related to the interests of the National
Council of Negro Women and gifted them |
to that organization. In holding that
the gift was one of property and not of
services, this Court relied upon the
case of Holmes, v. Commissioner at 57
T.C., page 43@ (1971). In Holmes, the
taxpayer had donated artistic property
(films) to charitable organizations.
The focus there was upon the fact that
the films were separate property, even
though they had been created by the
taxpayer’s services. The same basic
APPENDIX 3
PAGE 13 OF 20
23
analysis was employed in the Goss case.
Here, petitioner accumulated related
materials which were in the public
domain. At some point in time,
apparently near the contribution of the
materials, petitioner decided that the
materials, along with his summary and
suggestions (contained in the five-page
letter), would be helpful to federal
government officials to avert financial
crises.
We do not consider petitoner’s report
to be separate property or artistic
property in the same manner as the
property referred to in the cases that
he cited. Instead, petitioner’s
contribution here is an offer of advice
or @ suggestion to his government,
essentially in letter form, and
Supported by a compendium of materials
APPENDIX 3
- PAGE 14 OF 20 74
that he had accumulated over a period of
time. Even though petitoner may not see
himself as one who could professionally
hold himself out or one who sells his
services as an economic professional, we
find that he was supplying his services
to the government. Respondent has
allowed petitionere his our-of-pocket
expenses cncerning the report, and
petitoner is not entitled to deduct an
additinal deduction for his 1986 or 1987
taxable years.
Due to our holding, there is no need to
decide the value, if any, of petitioner’s
report. Petitioner, in claiming a
deduction based on value in excess of
$200,000, used a comparative analysis.
He suggests that the federal government
has peid substantiaely larger sums for
studies and reports concerning
significantly less important matters
APPENDIX 2
PAGE 15 OF 20 25
that tne collapse of the national
economy. Although petitioner’s point is
well taken, the government did not
contract with petitioner to provide the
advice. And the report does not have
inherent value as property, but it is
petitioner’s idea or conceptual offering
that may have had the value. The value
of the concept, if any, was in the
petitioner’s rendering of the service
by communicating the idea to the
government. Petitioner is to be
commended for his attempt to assist his
government at a time when he sensed
impending economic crises, but Congress
did not provide for respondent in this
type of situation.
At trial, petitioner sought to make a
counterclaim against the government.
Petitioner argued, if we decide that he
was not entitled to a contribution for
APPENDIX 3
PAGE 16 OF 20
26
the amount he claimed, then the
government received the benefits and
oved him for the idea. Concerning
petitioner’s counterclaim, we need not
address that issue because our
jurisdiction is statutorily limited
to those matters enumerated in Title 26,
United States Code, and does not include
claims against the United States of
America being pursued under Title 28,
United States Code, or any other
statutorily-authorized claims against
the sovereign. See Sections 7441 and
7442, Internal Revenue Code of 1986, and
the discussion in Oppenheimer v.
Commissioner, T.C. Memo 1986-537, and
Lewicki v. Commissioner, T.C. Memo 1974-
86. Accordingly, we are without
authority or jurisdiction to consider or
grant petitioner’s counterclaim.
We note that we have also denied
LT
APPENDIX 3
PAGE 17 OF 20 >7
petitioner’s request for a jury trial
and/or removal to the United States
District Court by a pretrial order.
See Masat v. Commissioner, 784 F.2d 573
at page 577 (Sth Cir., 1986).
Section 6653(a)(1)(A) and section
6653(a)(1)(B) provide for the addition to
tax if any part of the underpayment is
due to negligence or disregard of the
rules and regulations. Negligence is a
lack of due care or failure to do whet a
reasonable and ordinary prudent person
would do under the circumstances. Neely
v. Commissioner, 85 T.C. 934 at page 947
(1985).
Respondent’s determination of negligence
is presumed to be correct, and the
teaxpeyer hes the burden of proving the
determination to be erroneous. Lumen v.
Commissioner, 79 T.C. 846 at peages 8620
APPENDIX 3
PAGE 18 OF 20
28
and 861 (1982); and Rule 142(a) of this
Court’s Rules of Practice and Procedure.
Petitioner had become knowledgeable
about claiming contributions of authored
materials. He was audited, and
respondent disallowed a similar
contribution in connection with an audit
of his 1973 taxable year. In spite of
the audit and disallowance of the 1973
cntribution, petitioner has again
claimed a similar deduction in 1986 and
1987. Petitioner has not shown a change
in the statutes or case lav.
Although he attempted to characterize
the subject of his contribution as a
contribution of property rather than
services, we find that the 1986 report
was not property and, accordingly, not
subject to capital gains.
—— |
APPENDIX 3
PAGE 19 OF 20 29
We further find petitioner liable for
the additions to tax under sections
6653(a)(1)(A) and (B) for his 1986 and
1987 taxable years.
Finally, respondent detereined that
petitioner was liable for an addition to
tax under section 6659, which relates to
underpayment of tax attributable to a
valuation overstatement. In the Setting
of this case, we did not disallow
petitioner’s contibution deduction in
connection with or consider the question
Of valuation. Because our holding is
not based upon an overvaluation under
section 6659, that section is not
applicable. See McCrary v.
Commissioner, 92 T.C., Page 827 (1989);
and Todd v. Commissioner, 862 F.2d, page
542 (Sth Cir., 1988).
And that is the conclusion of this
30
Appellate Courts.
Introduction:
In this section we will be dealing
with a number of Internal Revenue Code
Statutes, IRS Rules end Regulations, IRS
Publications, Amendments of the United
States Constitution and the Rights they
Guereantee, Common Lav, Case none Ley,
Federel Rules of Civil Appellate
Procedure, eppropriate dictionary legal
definitions, and the United Stetes Tax
Court Rules of Prectice end Procedure
requirements es they epply to the 9th
Circuit Court of Appeels, August 6, 1993
a
31
MEMORANDUM Ruling which was unsigned by
the Judges plus unsigned August 9 as
well as September 27, 1993 9th Circuit
Court Orders.
I. First it should be stated that
justice has not been served by the IRS
during the processing of this case. This
ia true with regard to the IRS because
there were many errors of fact, errors
of law, intentional distortions, and
malicious attempts to discredit and/or
diminish Petitioner’s case which were
included in the February 5, 1990 IRS
final Tax Deficiency Finding. See
Appendix 1 for a copy of that document.
The above identified errors and misdeeds
are identifiable by comparing the
content of Appendix 1 with the above
STATEMENT OF THE CASE.
II. Second it should be stated that
justice hes not been served by the Tex
Court during the processing of this
32
case. This is true with regard to the
Tax Court because there were many errors
of fact, errors of law, intentional
distortions, and malicious attempts to
discredit and/or diminish Petitioner’s
case which were included in the May 10,
1991 Tax Court Bench Opinion and Oral
Finding of Facts. See Appendix 3 for a
copy of that document. The above
identified errors and misdeeds are
identifiable by comparing the content of
Appendix 3 with the above STATEMENT OF
THE CASE.
III. Third it should be pointed out
that the Justice Department Defaulted on
their case by edmitting, via devault, a
preponderance of Petitioner’s 9th
Circuit Court of Appeals Brief. This
default came about by the Justice
Depertment’s failure to deny or rebutt
the content of major elements of
Petitioner’s 9th Circuit Court of
a
oe <
Appeals Brief in the Justic Department’s
Answer Brief. The Justice Department’s
default on the case was specified, as
follows, and pointed out in Petitioner’s
Sth Circuit Court of Appeals Reply
Brief:
"STATEMENT OF ISSUES*
"I. U.S. JUSTICE DEPARTMENT DEFAULTS:"
ae U.S. Justice Department’s Ansver
Brief only responded to Appellant’s
Statement of the Issues Items Numbered
1, 3, 7 and 8. Consequently Appelleant’s
Statement of the Issues Items Numbered
2, 4 5S, & 9, 10 and 11 are considered
to be admitted by the U.S. Justice
Department by default."
"ae U.S. Justice Department’s Answer
Brief only responded to Appellant’s
Statement of the Case Items Numbered 1,
4, 5, 6 7, 9, lines 1 thru 3 of 10, and
11. Congequently Appellant’s Statement
of the Case Items Numbered 2, 3, 8,
34
lines 4 and on of Item 10, 12, 13, 14,
i5, 16, and 17 are considered to be
admitted by the U.S. Justice Department
by default."
*3. U.S. Justice Department’s Ansver
Brief only responded to Appeliant’s
Arguments Numbered i, 2, 3, 4 5S, 6,
7, 10, 13, 12, and i7. Consequently
Appellant’s Arguments Numbered 8, 9, 13,
14, iS, 16, 18, and 19 are considered to
be admitted by the U.S. Justice
Department by default.”
IV. Fourth it should be stated that
justice hes not been served by the IRS,
the Tax Court or at the Sth Circuit
Court of Appeals level. This is true
with regard to the 9th Circuit Court of
Appeals beceuse there were many errors
of fect, errors of lav, intentional
distortions, and malicious attempts to
discredit and/or diminish Petitioner's
case which vere included in the August
35
6, 1993 9th Circuit Court of Appeals
(UNSIGNED AND THEREFORE UNLAWLFUL)
MEMORANDUM Ruling. See Appendix 6 for a
copy of that MEMORANDUM. The following
quotes from that MEMORANDUM Ruling are
contested, denied, or rebutted by the
preceeding STATEMENT OF THE CASE section
of this Petition or by Petitioner’s
accompanying rebuttal comments belovw:
MEMORANDUM Ruling Quote (MRQ):
"Rokke compiled a document entitled
""Macro Economics Study Collection of
Data."" It consisted of his five-page
analysis and appended materials
(Primarily magazine and newspaper
clippings).’”
Petitioner’s rebuttal statement: The
above "and eppended materials (magazine
and newspaper clippings comment)." is a
complete fiction.
» MRO: "Rokke appealed to the
tex court."
36
Petitioner’s rebuttel statement: The
ebove statement is O.K. as far eas it
goes but it feils to mention the gross
ermount of resources Petitioner has been
forced to expand via Motion for
Transtfer/Remand of the case to the U.S.
District Court to implement Petitioner’s
demanded jury triel based on the commpon
lew Unjust Enrichment espects of this
cease and the jury triel guarantees for
common lew cases which is contained in
Amendment VII of the U.S. Constitution.
- MRO: "The Tex Court held that
Rokke’s contribution was ea service.
Petitioner’s rebuttal statement: This
is ea nice benign statement but it faeiis
to mention the fact that the issues of
gervices was only reised by the Tex
Court Judge four days after the triel
hed been completed. This changing of the
*“cherges" after the triel denied
37
Petitioner his rights to an adequate
opportunity to prepare his case against
the "contribution was a contribution of
services” charges and present hie
defense on this issue during the trial.
This changing of the "charges" after the
trial denied Petitioner his rights to Due
Process and Equal Protection of the Laws
as guaranteed by Amendment XIV of the
U.S. Constitution.
° The IRS, during its pre-triel
handling of this case end during the
triel, mainteined that Rokke’s
contribution was being denied because it
was considered, by the IRS, to be a
contribution of "ordinary income
property”. Four days efter the triel
was over and the litigants had departed
the Tex Court Judge decided that Rokke’s
contribution should be denied on the
besis thet it wes e contribution of
"services" insteed of a contribution of
38
"ordinary income property". ...."
Mr. Rokke consistently argued that the
contribution was not a donation of
"ordinary income property" because
Bleck’s Law Dictionery states that:
"Ordinary Income. Term embraces
income from regular sources such es
wages, commissions, interest, dividends
and the like." See Appendix 11.
Mr. Rokke appropriately entered into
evidence his life long collection of W2
end IRS 1040 Tex Return Copies which
proved that he had spent his entire
pre-retirement career employed as a
Professional Engineer with companies in
the Aerospace and Petro-Chemical
industry. Rokke argued that he had
never earned one cent of “ordinary
income" from employment in the banking,
savings and loan, or other aspects of
the financiel industry. Rokke argued ;
that the Collection of Data, Manuscripts
39
that he contributed to President Reagan
in 1986 was a contribution of Rokke’s
Personal Property, Collection of Data,
Manuscripts which IRS Publication 544
Sales and Other Disposition of Assets
clearly indicates that Petitioner could
deduct at their fair market value. This
vas especially reinforced by a
paragraph in IRS Publication 561
Determining the Value of Donated
Property which states in part:
"Manuscripts, autographs, diaries, and
Similar items that are handwritten, or
at least signed by famous people, often
are in demand and are valuable. The
writings of unknowns also may be of
value if they are of unusual historical
or literary importance." See Appendix
12 for a full quote of this Publication
561 paragraph. Petitioner argues that
hia contributed manuscripts are of
"unusual historical importance” because
40
the U.S. Government utilized the
national economic crisis aenelysis and
‘the netionel entity survivel scenario,
contsined therein, to cope with the °1986
and on" Banking plus S&L industry
debt crisis. Petitioner’s netionel
entity survivel scenario enabled the
U.S. Government to solve the national
economic crisis without collapse of the
free world economies or run avay
inflation. Petitioner alleges that ti.e
above cited “objected to" sentence of
the August 6, 1993 MEMORANDUM Ruling was
constructed to intentionally mask the
fact thet the Tex Court Judge changed
the grounds for disallowing Petitioners
contribution efter the triel was over
insteed of during the triel es the
"objected to* sentence would imply.
Petitioner ergues thet this is one
specific example of the melice thet the
Judges of the 9th Circuit Court of
41
Appeals demonstrated agsinst Petitioner
in a consistent effort to damage and/or
diminish Petitioner’s case on appeal.
In the "II. Charitable Contribution
Deduction” section of the 9th Circuit -
Court’s August 6, 1993 MEMORANDUM Ruling
there is an obvious misinterpretation
and migeppliceation of the laws that are
relevant to this case. This mis-
interpretation and misapplication is
identified in the last three sentences
of the first paragraph of MEMORANDUM
Section II quoted below:
MRO: "He (Rokke) argues that
the tax court erred in chaeracterizing
his constribution as a service. He
believes that it was a capitel asset.
We affirm the tax court on other
grounde."”
Petitioner’s rebuttal statement:
Petitioner mseinteins thet this is ea
major error of fact and lew es vell as a
42
major mpisepplication of the lavw.
Petitioner maintesins that this is e
situation in which the Tax Code is
chronicelly and erroneously sis-
interpreted and wsisepplied. This came
ebout vie the error of utilizing IRC
gwsection 170 to define “ordinary incore
property" instead of using Bleck’s Lev
Dictionary legal definition of that
category of property eas discussed above.
This is coupled by the fact that Rokke’s
contribution was e legitimate
contribution for which he could deduct
ita feir market value by virtue of the
fact that it wes of "“unusuel historical
importance". <A contribution of ordinary
income property of “unusual historicel
importance" is deductible at its faeir
market value eas sanctioned by IRS
Publication 561 Determining the Value of
Donated Property, see Appendix 12, as :
well es in the case of Jarre_v.
43
Commissioner, 64 T.C. 183 (1975), see
59 T.C. 594 at page 596, see Appendix 14.
MRO: "The contribution was
neither a service, nor a capital asset,
eas Rokke Contends. He contributed
Ordinary income property, for which he
is entitled to deduct, at most, his cost
basis. The Commissioner correctly
limited Rokke’s deduction."
Petitioner’s rebuttal statement: The
foregoing is a case in point of the
chronic misinterpretation and
mis-application of the Tax Laws in cases
inolving contributions of property. The
IRS and the Tax Court self-servingly
indulge a highly unlawful definitin of
"ordinary income property" to fill their
coffers at tax payers expense. In this
case the property Petitioner contributed
could in no way be considered property
of the type from which Petitioner ever
APPENDIX 6
PAGE 12 OF 13
the clearly erroneous standard.
Hildebrand v. Commissioner, 967 F.2d
ene |S SS Se a
350, 353 (9th Cir. 1992).
The tax court affirmed the
Commissioner's assesement of a
negligence penalty under section 6653(a),
based on evidence that Rokke had a
Similar contribution in 1973 to the
Naval Weapons Center in China Lake. In
that case the tax court made clear to
Rokke the significance of the fact that
he had contributed ordinary_income
property. From this, the court
concluded that Rokke had substantial
experience with the tax law in this
area and upheld the Commissioner’s
assessment. There was no clear errror
in its ruling.
IV. Motion for Removal to District
APPENDIX 6
PAGE 11 OF 13 4s
Rokke contends that the tax court
erred in denying hie motion for removal
of his case to the district court.
Rokke seems to believe that he is
constitutionally entitled to either a
Jury trial in the tax court or removal
to the district court. He is wrong. We
review removal issued de novo. Emrich
(Sth Cir. 1988).
There is no right to a jury triel in
tex court. Mesat_v. Commissioner, 784
F.2d 573, 577 (Sth Cir. 1986). Also,
once @ taxpayer seeks relief in ea tax
court, he loses his right to go to the
district court. I.R.C. section 6512(a);
(1987).
APPENDIX 6
PAGE i2 OF 13
Rokke contends that he ia entitled to
costes because, "the appeals process is
so complicated and such a vexatious as
46
well as resource consuming, high stress,
traumatic experience". His contention
is meritless.
Rokke is not entitled to costs. He was
not ea prevailing party.
2 e Motion for Reconsideration
Rokke contends thet the tex court erred
in denying, without explanation, his
motion for reconsideration. He argues
that this rendered him unable to,
"defend against this contribution of
services allegation in preparation for
and during the trial". His contention
47
is meritless. We review such motions
for abuse of discretion. Fuller v. H.G.
Jevelry, 950 F.2d 1437, 1442 (9th Cir.
1991).
Reconsideration is not ea matter of
right, but is discretionary. id. at
1442. Denial of such a motion cannot,
by itself, constitute a denial of due
process.
There wes no ebuse of discretion.
We affirm the tex court, but reject its
holding that Rokke’s contribution was a
service.
Stamped: Aug 06 1993
APPENDIX 7
PAGE 1 OF 2 48
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD LEIF ROKKE, )
Petitioner-Appellant, > So. 9i-70722
Vv. ) Tax Ct. No.
) 6862-92
COMMISSIONER OF INTERNAL )
REVENUE ) ORDER
Respondent -Appellee )
Before: WRIGHT, BEEZER, AND HALL,
Circuit Judges.
The Appellant filed with the deputy
clerk in Seattle on August 4, 1993, four
documents.
IT IS ORDERED that:
the motion for remand to the district
APPENDIX 7
PAGE 2 OF 2 49
court for jury trial is DENIED;
the motion to reconsider the denial of
a continuance is DENIED;
the motion for leave to file additional
Citations is DENIED and the additional
Citations memorandum will be rejected
and not filed by the Clerk.
THIS DOCUMENT WAS SERVED ON PETITIONER
UNSIGNED
Stamped August 9, 1993
APPENDIX &
5
PAGE 1 OF 2 52
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD LEIF ROKKE, )
Petitioner-Appellant, ) No. 91-70722
) Tax Gt. He.
Vv. ) 6862-90
COMMISSIONER OF INTERNAL ) ORDER
REVENUE )
Respondent -Appellee )
Before: WRIGHT, BEEZER, AND HALL,
Circuit Judges
The panel has voted to deny the petition
for rehearing, and Judges Beezer and
Hall have voted to reject the suggestion
for a rehearing en banc.
APPENDIX 8
PAGE 2 OF 2
The full court has been advised of
the suggestion for rehearing en banc and
no active judge has requested a vote on
whether to rehear the mnatter en banc.
Fed. R. App. P. 35(b).
The petition for rehearing is DENIED
and the suggestion for a rehearing
enbanc is REJECTED.
THIS DOCUMENT WAS SERVED ON PETITIONER
UNSIGNED
Stamped Sep 27 1993
APPENDIX 9
PAGE 1 OF 1
UNITED STATES CONSTITUTION
AMENDMENT VII (1791)
In Suits at common law, where the
value in controversy shall exceed twenty
dollars, the right to trial by jury shall
be preserved, and no act tried by jury,
shall be otherwise re-examined in any
Court of the United States, than
according to the rules of common lav.
APPENDIX 10
PAGE 1 OF 1 c
UNITED STATES CONSTITUTION
AMENDMENT XIV (1868)
Section 1. All persons born or
naturalized in the United States, and
subject to the jurisdiction thereof, are
citizens of the United States and of the
State wherein they reside. No State
shall make or enforce any law which
shall abridge the privileges or
immunities of citizens of the United
States; nor shall any State deprive any
person of life, liberty, or property,
without due process of law; nor deny to
any person within its jurisdiction the
equal protection of the laws.
APPENDIX 11
PAGE 1 OF i
BLACK’S LAW DICTIONARY
Definition:
"Ordinary income. For income tax
purposes reportable income not
quelifying as capital gains. Term used
to describe income taxed at ordinary
rates in contrast to income texed at
the more advantageous rates of capital
gains. Term embraces income from
reguler sources such as weges,
commissions, interest, dividends and the
like.
Where "regular" is defined as:
*"Reguler. Conformable to law.
Steady or uniform in course,
practice, or occurrrence; not subject to
unexplained or irrational variations.
Usuel, customary or general. ..."
APPENDIX 12
PAGE 1 OF 1
ul
un
IRS PUBLICATION S61 DETERMINING THE
VALUE OF DONATED PROPERTY
*"Manscripts, autographs, diaries,
anc similer items that are handwritten,
Or at ieast signed by famous people,
ofter are in demand and are valuable.
The writings of unknowns also may be of
value if they are of unusual historical
or literary importance. Determining the
value of such material is difficult.
There may be a great difference in value
between two diaries that were kept by a
famous person--one kept furing childhood
and the other during an important period
in his or her life. The appraiser
determines a value in these cases by
applying knowledge and judgment to
factors such as comparable sales and
conditions.”
APPENDIX 13
PAGE 1} OF 23
36
MAURICE JARRE AND MARY LOUISE JARRE,
PETITIONERS V. COMMISSIONER OF INTERNAL
REVENUE, RESPONDENT.
Docket No. 6546-73. Filed May 7, 1975
Petitioner Maurice Jarre contributed
certain of his original music
manuscripts and other related materials,
such as the score of "Dr. Zhivago,” to
the University of Southern California in
1967 and 1968.- Held, the fair market
value of said gifts determined.
Eli Blumenfeld, for the petitioner.
Stephen W. Simpson and Jonathan A. Brod,
for the respondent.
STERRETT, Judge: The respondent
determined deficiencies of $28,116 and
$34,028 in the Federal income taxes of
petitioners for the calendar years 1967
APPENDIX 13
PAGE 2 OF 23 57
and 1968, respectively. The sole issue
presented requires our determination of
the fair market value of certain
Original music manuscripts and related
material contributed by petitioner
Maurice Jarre to the University of
Southern California in 1967 and 1968 for
purposes of computing the amount of
deductions for charitable contributions
to which petitioners are entitled under
section 170, I.R.C..
FINDING OF FACT
Some of the facts have been
stipulated and are so found. The
stipulation of facts, together with the
exhibits attached thereto, are
incorporated herein by this reference.
Petitioners are husband and wife
whose legal residence at the time of
filing the petition was in Beverly
APPENDIX 13
PAGE 3 OF 23 528
Hills, Calif. They filed joint Federal
income tax returns for the calendar
years 1967 and 1968 with the District
Director of Internal Revenue at Los
Angeles, Calif.
Petitioner Maurice Jarre ‘(hereinafter
Jarre) is 8 music composer and conductor
of international reputation. Jarre has
been a composer and conductor for some
25 to 28 years. He began his music
cereer in Lyons, France, and then
studied in Paris at the National
Conservatory Music. Jarre, along with
Pierre boulez (currently the music
director of the New York Philharmonic
Orchestra), then became the music
edviser to the newly formed Jean-Louis
Barrault Theater Co. in France where he
remained for 4 years. Jarre
subsequently became music director and
conductor for the French National
Theatre in 1951, positions he held for
APPENDIX 13
PAGE 4 OF 23 59
12 years. During this period petitioner
was responsible for the music budget,
composed the music for all
plays, including "Macbeth," "Oedipus, ”
and "The Hairy Ape,” and conducted the
orchestra for all plays and concerts.
He also composed music for French films,
radio broadcasts, a ballet, and
television program.
In 1964 Jarre moved to and became a
permanent resident of the United States.
He has since composed music for
approximately SO American films. Some
of Jarre’s scores for American films
include "Lawrence of Arabia," "Topaz,”
"Ryan’s Daughter,” "Dr. Zhivago,” "Is
Paris Burning?," "Grand Prix,” "The
Longest Day,” and "Night of the
Generals.” Jarre generally prepares all
elements, including arrangements and
orchestration, of the film scores he
composes and sometimes conducts the
APPENDIX 13
PAGE S OF 23 60
music for the sound track. Jarre has a
Classical music background and has
written symphonic euaie, ballet and
opera music, and also electronnic music
called musique concrete. He has
conducted well-known symphony orchestras
in a number of foreign nations. His
most publicized success, however, has
come in the field of popular culture
music and, more particularly, in music
for film. Jarre is considered by his
peers to be one of the top 10 composers
of music for film in the world and he is
one of the most sought after composers
in the film industry.
Jarre is a member of the American
Society of Composers, Authors and
Publishers (ASCAP) as a publisher. He
is also a member in the highest rank of
the Society of Authors, Composers, and
Publishers (SACEM) as a composer. An
individual is not permitted to be a
APPENDIX 13
PAGE 6 OF 23 &)
member of both organizations in the same
category. Jarre has served on a number
of committees and advisory groups
dealing with music both in France and in
the United States. There is a large
number of books and magazines containing
biographical material about Jarre and
his career in music of which a sampling
of some 53 (American and foreign) was
placed in evidence in this proceeding.
In addition, a good deal of his music,
both American and foreign, has been
recorded.
Jarre has won two Academy Awards
(for the scores for "Lawrence of Arabia"
and "Dr. Zhivago"), a Golden Globe
avard, and has received three other
Academy Award nominations. He has also
received a number of awards of
compsrable importance in France (such as
the chevalier des Arts et Lettres),
Germany, England, and Italy.
APPENDIX 13
PAGE 7 OF 23 62
In his capacity as a composer,
Jarre has created numerous original
works, some of which have been
contributed to the University of
Southern California and the University
of Wyoming after solicitation of his
material by those schools. In response
to requests, in 1967 and 1968 Jarre
contributed certain original music
manuscripts and other related material
to the University of Southern
California. The following property
rights were conveyed as part of the 1967
and 1968 gifts: all copyrights; rights
of publication in book form; rights of
serialization; magazine and newspaper
rights; reprint rights; and book club
rights or dramaatization rights.
The 1967 and 1968 gifts include
the music manuscripts and related
material to some 14 of Jarre’s American
films, 10 French films, 10 plays, 2
APPENDIX 13
PAGE 8 OF 23 -
ballets, and a number of French radio
and television productions and consist
of over 4,000 pages. The material
consists mainly of Jarre’s original and
generally complete workings (as opposed
to finished) manuscripts of musical
scores and sketches (some several
hundred pages long) writtten in his own
hand, some signed on a number of
pages, and with annotations. Music
notes, click track timing sheets, and
cue sheets, generally annotated and
sometimes completely in Jarres hand, and
some photocopies and typescripts of
scores are also included. Among the
contributed scores for American films
were those from "Grand Prix,” "Dr.
Zhivago” (the music of which sold some
14 million tapes and records and some
1,500,000 lead sheets), "Nights of the
Generals,” "Behold a Pale Horse," "Is
Paris Burning?" and "Gambit." The
APPENDIX 13
PAGE 9 OF 23 64
condition of the inmates material was
very good.
Prior to and including the years
in issue none of Jarre’s original
menuscripts or copies thereof had come
oo: the market. Except for a few one page
fair copies of music from "Ryan’s
Daughter," "Dr. Zhivago," and "Lawrence
of Arabia" which were sold to dealers for
$50 to $75 in 1974 and three one-page
fair copies of music from "Dr. Zhivago, "
two of which were sold to collectors for
$300 and $325, respectively, in 1974 and
one for $75 in 1972 none of Jarre’s work
has come on the market. A fair copy is a
copy in the composer’s own handwriting.
. During the years in issue, Jarre
retained one Milton Luboviski
(hereinafter Luboviski), the proprietor
of Larry Edmons Book Shop, to eppraise
his donated material. Luboviski, who
deals in cinema and theater materiel,
APPENDIX 13
PAGE 10 OF 23 65
appraised the donated material at the
time of contributions. His
determinations of the fair market value
of the donated material for 1967 and
1968 were $54,200 and $61, 900. In 1971,
Jarre retained one Charles Sachs,
proprietor of the Scriptorium, to
appraise his 1967 and 1968 gifts.
Sachs’ appraisal found the fair market
values, as of the dates of
contribution, of Jarre’s materials
contributed in 1967 and 1968 to be
$61,996 and $35,918, respectively.
. Respondent retained one Doris
Harris, the proprietress of Doris
Harris Autographs, to value the
contributed material. In 1970 she
appraised the 1967 and 1968 gifts at
$5,875 and $2,775, respectively, as of
the dates of contribution. On learning
that some of the handwriting she
attributed to a coopyist was actually
APPENDIX 13
PAGE 11 OF 23 66
that of Jarre and upon a number of the
donated manuscripts becoming availablle
for her inspection, which were not at
the University of Southern California at
the time of her original appraisals,
Harris reappraised the 1967 and 1968
material in issue, as of the dates of
contribution, at $7,615 and $4,915,
respectively.
In their 1967 and 1968 income tax
returns, petitioners claimed deductions
of 354,200 anc $61,900, respectively,
for the contributions in question made
by Jarre. In his notice of deficiency
respondent disallowed the claimed
deductions upon his determination that
petitioners did not own the donated
material, a point now conceded by
respondent. In the notice of deficiency
respondent alternatively determiined
that, in the event ownership of the
donated material is established, the
APPENDIX 13
PAGE 12 OF 23 67
deductions for the years 1967 and 1968
would be limited by the fair market
values thereof to $4,875 and $2,775,
respectively. Respondent now has
conceded that petitioners are entitled
to deductions of $7,615 for 1967 and
$4,915 for 1968, rather than the amounts
stated in the notice of deficiency, but
contends that no larger deductions are
allowable.
OPINION
The sole issue for decision relates
to the amount of the deductions for
purposes of section 170 to which
petitioners are entitled for the
contributions of original music
manuscripts and other relateld material
to the University of Southern California
in 1967 and 1968. There being no issue
as to the other requirements of section
APPENDIX 13
PAGE 13 OF 23 68
170, the only question presented is the
proper amount of the deductions, or the
fair market value of the contributed
property.
With respect to contributions of
property, section 1.170-1(c)(1) of the
Income Tex Regs. provided in part:
(c)*eee(1) Generel rules. If a
contribution is made in property other
than money, the amount of the deducton
is determined by the feir market vaiue
of the property at the time of the
contribution. The feir market value is
the price at which the property would
change hands between eae willing buyer and
e villing seller, neither being under
any compulsion to buy or sell and both
having reasonable knoweledge of relevent
facts. «ee
Petitioners contend that the fair
APPENDIX 13
PAGE 14 OF 23 69
market values ofthe 1967 and 1968 gifts
were $54,200 and $61, 900, respectively,
which amounts they deducted on their
appropriate tax returns. It is
respondent’s position that the fair
market values of the donated prpoerty
were $7,615 for 1967 end $4,915 for
1968.
The question of fair market value is
one of fact which must be resolved from
consideration of all the relevant
evidence in the record. Philip Keplen,
43 T.C. 663, 665 (1965). Both parties
produced voluminous testimony, which ve
will not recount, of experts and others
dealing in or faemilier with property of
the type in question in addition to a
number of exhibits including the
eppreisel reports of the expert
vitnesses. In the interest of brevity,
ve have summarized only the highlights
of such evidence in our Findings of
APPENDIX 13
PAGE 15 OF 23 70
Fact.
In resolving the issue of the fair
market value of the gifts of music
manuscripts and related material, we
believe the following factors are
ancluded among those elements which we
must, and have, considered in
determination of the question at hand:
the composers standing in his field and
popularity of his works in general; the
critical accleim and populer appeal of
the particular works contributed; the
relative place and importance of the
contributed works in the composers
career; the condition and content of the
contributed works; whether the
contributed works are originals, feir
copies, or photocopies, are written in
the composer’s own hand, are signed, or
ere in ink, pencil or typed; the length
of the individuaell contributed works and
the sizes of the pages containing them;
APPENDIX 13
PAGE 16 OF 23 71
whether the mental processes of the
composer are shown (i.e., working versus
souvenir or finished manuscripts),
including annotations; the demand in the
marketplace for the type of vorks
contributed and for the particular works
contributed; the associative character
of the contributed works (such as the
film, its actors and actresses, its
director, or its subject); the
quantity, or conversely the rarity, of
the contributed material (including ©
whether the composer is dead or alive);
and the length of time necessary to sell
the contributed works.
In weighing the testimony and
appraisals of the expert witnesses in
this case, we have considered as
important their demonstrated
qualification to form an opinion, their
familiarity with the background and
relative place of Jarre in his field,
APPENDIX 13
PAGE 17 OF 23 72
their choices of comparable sales, their
familiarity and contact with the
potential market for the contributed
material, and their knowledge of the
material. We also have considered the
expert witnesses’ relative expertise as
judged and observed by us, the time
spent on and thoroughness of their
appraisals, and their knowledge of the
particular field both before and after
research. See Keystone Wood Products
Co., 19 8.T.A. 4436. 2421 -2ig2 (i920).
affd. 66 F.2d 258 (2nd Cir. 1933).
In this respect, we note that the
testimony of all three expert witnesses
had instances of inconsistent, vague,
and conclusionary statements. We think
it important that petitioner’s experts,
especially Luboviski, deal daily in
cinema memorabelia, while respondent’s
expert does not. Clearly, this does not
make respondent’s expert incapable of
APPENDIX 13
PAGE 18 OF 23 73
researching and evaluating the market
for film music, but it is a factor we
must consider in weighing respondent’s
expert’s testimony. In fact,
respondent’s expert admitted she sends
customers desiring cinema material to
Luboviski because he deals in such items
while she generaly does not. In
addition, we think it sigsnificant that
respondent’s expert placed a great deal
of significance on Jarre’s absence from
a 1959 edition book discussion 20
composers, despite the fact that Jarre’s
success and recognition, at lealst in the
United States, came in the 1960’s for
film music. Furthermore, we believe the
record shows that respondent’s expert
was not fully aware of Jarre’s foreign
accomplishments and reputation.
Respondent does not claim that Jarre
is unknown among his professional
associates. Respondent readily admits
APPENDIX 13
PAGE 19 OF 23 74
that Jarre is one of the top 10
composers of film music. Respondent
also recognizes that the condition of
the contributed materials is very good
and, as his expert stated, their content
and appearance is attractive and
interesting. Nor does respondent
contend that Jarrre’s contributed
material has no value. Indeed, it would
be odd for the University of Southern
California to solicit Jarres works if
they had no value. Rather, respondent’s
position, apart from attacking
petitioner’s experts’ appraisal, is that
there is a very small, if any, market
for the type of material donated or for
Jarre’s material in particular. As
grounds for his argument respondent
points to the lack of recorded sales of
whole film scores, and the lack of
inquiries received by the witnesses in
this trial concerning sales of Jarre’s
APPENDIX 13
PAGE 20 OF 23
735
Or anyone else’s film scores, and
Jarre’s lack of name recognition among
other than his professional associates.
In addition, respondent asserts that the
depressing effect on the market of the
volume of Jarre’s contributed material
must be considered.
With respondent’s latter contention,
we agree. Estate of David Smith, 57
T.C. 650, 656-658 (1972), affd. 510 F.2d
479 (2nd Cir. 1975). However, with
respect to respondents first contention,
the fact that there may be a limited
market does not, in our opinion, prevent
the contributed property from having
substantial value. See Publicker v.
Commissioner, 206 F.2d 250 (3rd Cir.
1953), affd. T.C. Memo. 1952-163, cert.
denied 346 U.S. 924 (1954); George P.
Fisher, Executor, 3 B.T.A. 679 (1926).
It is however, a factor to consider.
Estate of David Smith, 57 T.C. at 655.
APPENDIX 13
a 3
AGE 21 OF 2 76
Considering the evidence of the
instant case we do believe respondent
has shown a somewhat limited market
for lengthy and complete music
manuscripts of film composers. There
was testimony from petitioners’
witnesses that they could recall only
one or two sales of and few, if any,
inquiries about such material.
On the other hand, we think the longer
manuscripts could, in some instances, be
broken down into shorter, more sealable
units, if necessary. There was evidence
submitted of a number of sales at
substantial prices of short or one-page
music manuscripts by popular culture
composers with whom we think Jarre is
comparable. In addition, we note that
several of Jarres one-page fair copies
of his music (admittedly worth less
than original manuscripts) were sold
between 1972 and 1974, some to dealers
APPENDIX 13
2
PAGE 22 OF 23 77
and some to collectors, for substantial
prices.
As for respondent’s claim that Jarre
has no name recognition except among
his professional essociates, we express
no opinion except to state that we
believe such fact, if true, to be of
little value. We cannot doubt that
Jarre’s music for films such as
"Dr.Zhivago”" (music of which sold some
14 million tapes and records) or
"Lawrence of Arabia" is itself
generally recognized and sought by the
public. This in turn, we believe, adds
to the desirability, and hence value, of
his less familiar works. Further, we
think Jarre’s premier role in the field
of writing music for films hae been
amply demonstrated.
. After carefully considering all the
evidence contained in the record, and
with the usuvuel obeisances to the
APPENDIX 13
PAGE 23 OF 23 78
vagaries of the judgment required by
this case, we conclude, and find as a
fact, that Jarres 1967 and 1968 gifts in
question had fair market values at the
time of contribution, of $45,000 and
$31, 000.
Decision will be entered under Rule 155.
APPENDIX 14 79
PAGE 1 OF 13
BERNARD GOSS AND NANCY C. GOSS,
PETITIONERS V. COMMISSIONER OF INTERNAL
REVENUE, RESPONDENT
Docket No. 3337-70.
Filed January 30, 1973.
1. Held, taxpayer is entitled to a
deduction under sec. 170, I.R.C. 1954,
for his donation of two essays of his
Own creation to a qualified charity; the
donation of the essays constituted a
contribution of property, and not of
services. Held, further, the essays had
a fair market value of $500.
r 2 Held, the Commissioner properly
disallowed deductions for alleged
business travel expenditures because
taxpayer did not comply with all the
substantiation requirements of sec.
274(d), I.R.C. 1954.
APPENDIX 14 80
PAGE 2 OF 13
George N. Plastiras, for the
petitioner.
G. Phil Harney, for the respondent.
Wiles, Judge: Respondent has determined
a deficiency in petitioner’s income tax
of $1,483.27 for taxable year 1967. The
issue for decision are:
(1) Whether petitioners are entitled to
a charitable deduction for petitioner’s
donation of two essays to a certain
charity, and if so0, what the fair market
value of those essays was at the time of
donation.
(2) Whether certain expenses incurred
by petitioner for travel in 1967 are
deductible as ordinary and necessary
business expenses.
FINDINGS OF FACT
APPENDIX 14 81
PAGE 3 OF i3
Some of the facts have been stipulated
and are found accordingly.
Petitioners are Bernard Goss —
(hereinafter referred to as petitoner)
and Nancy C. Goss, husband and wife, who
resided in Little Rock, Ark., at the
time of the filing of the petition
herein. They filed a joint Federal
income tax return for the taxable year
1967 with the district director of
internal revenue in Little Rock, Ark.
During 1960 end 1961 petitioner was
employed by the Federal Reserve Bank of
Dallas, Tex., as an industrial
economist. From 1963 to 1966 petitioner
was an assistant professor of economics,
finance, and marketing at St. Edward’s
University, Austin, Tex. From June
1966 to January 29, 1967, petitioner was
employed as a technical assistance
officer and economist at the Austin,
Tex., regional office of the Economic
APPENDIX 14 82
PAGE 4 OF 13
Development Administration. Throughout
the remainder of 1967 petitioner was
employed as an economic research
specialist with the Ozark Regional
Commission, Little Rock, Ark..
On November 10, 1967, petitioner made a
gift of two essays to the National
Council of Negro Women, a qualified
charitable organization. The petitioner
prepared these two essays, which are
entitled "The Negro Woman’s Income Gap”
and "Urban Spatial Economic/Social
Inter-Relationships." The purpose of
these essays was to provide the National
Council of Negro Women with policies
and objectives regarding the creation of
adequate and positive economic
opportunities for low-income groups.
Tne essays vere based on the results of
@ survey conducted by petitioner.
On his 1967 Federel income tax return,
petitioner, claimed a deduction for
APPENDIX 14 83
PAGE 5S OF 13
charitable contribution of the essays to
the National Council of Negro Women. In
claiming that deduction petitioner
repcrted a fair market value of $1,500
for the essays. Respondent disallowed
the deduction claimed with respect to
the donation of the essays except for
$50 allowed for certain out-of-pocket
expenses. In his amended petition,
petitioner reported a fair market value
of $2,250 for the essays.
On his 1967 return, petitioner also
claimed a business expense deduction in
the amount of $1,246, part of which was
expended for travel. Respondent
disallowed the claimed dedution with
respect to certain travel expenses.
Although the parties stipulated that the
travel expenses in issue amounted to
$860.99, the petitioner now contends
that the travel expenses incorrectly
disallowed by the respondent eamounted to
APPENDIX 14 84
PAGE 6 OF 13
$728.14.
OPINION
Section 170(A). I.R.C. 1954, allows as
@ deduction any charitable contribution
when peyment is made within the taxable
year. Section 170(c) defines a
chariteble contribution as a
contribution or gift to or for the use
of certain specified classes of
organizations. Respondent agrees that
the National/Council of Negro Women
quelifies es a member of these
specified classes.
The regulations provide that no
deduction is allowable pursvant to
section 170 for contribution of
services. Sec. 1.170-2(a)(2), Income
Tax Regs. The regulations also provide
that if a contribution is made in
property other than money, the amount of
APPENDIX 14 85
PAGE 7 OF 13
the deduction is determined by the fair
market value of the property at the time
of the contribution. The regulations
define fair market value as the price at
which the property would change hands
between a willing buyer and a willing
seller, neither being under any
compulsion to buy or sell and both
having reasonable knowledge of relevant
facts. Sec. 1.170-1(c)(1), Income Tax
Regs.
Respondent contends that the donation
does not qualify for a charitable
deduction because it was in the nature
of services rather than of property.
Respondent also contends that even if
the donstion qualifies for a charitable
dudietinn, petitioner has failed to
establish the fair market value of the
donation.
We held in John R. Holmes, 57 T.C. 430
(1971), that the donation of two films
APPENDIX 14 86
PAGE 8 OF 13
by the taxpayer who produced them to
certain qualified charities constituted
a contribution of property, and not of
services. The taxpayer, an independent
film producer, showed the completed
films on a television atation before
donating them to the charities.
One film, donated to a hospital, was
based on a musical comedy stege shoyw,
the purpose of which was to raise funds
for the cardiac center at the hospital.
The other film, donated to a boys’ club,
depicted the boys’ club’s various
activities and showed the poor condition
of its facilities.
We believe that the facts in the |
present case are analagous to the facts
in Holmes. In both situations,
petitioner donated artistic properties
that he himself had created. In Holmes
we noted that the donated film was
something different from the
ny
APPENDIX 14 87
PAGE 39 OF 1i3
petitioner’s services and the
unprocessed film. Similarly, the
completed manuscript was something
different from the petitioner’s services
and the blank paper. In both cases the
donor maintained physical ownership
over the property before it was
donated. Accordingly, we conclude that
the donation of artistic property,
whether it be a film production or an
essay, constitutes a donation of
property rather than of services. We
therefore hold that petitioner is
entitled to a deduction under section
170 for his donated two essays.
The amount of the deduction to which
petitioner is entitled is determined by
the fair market value of the essays at
the time of the contribution. What the
for market value of a piece of property
is at an given date is a question of
fact, to be resolved from a
APPENDIX 14 88
PAGE 10 OF 13
consideration and weighing of all the
relevant evidence in the record. Philip
Kaplan 43 T.C. 663 (1965). Although
petitioner presented testimony at trial
as to the fair market value of the
essays, respondent failed to call any
witnesses and failed to present any
evidence regarding fair market value.
Petitioner testified that he charged
$150 per day as a consulting fee, that
he worked on the essays for 15 days and
that the value of the essays therefore
is $2, 250. We are unable to accept
petitioners argument regarding the value
of the essays. Petitioner testified
that prior to the contribution of the
essays he had been employed as a
consultant for a fee of $150 per day
during April 1967. In his Federal
income tax return for 1967, petitioner
reported $150 as income from consulting
work. Thus, petitioner contends that
APPENDIX 14 89
PAGE 11 OF 13
the value of his services in writing
the essays should be based on a fee
which he had charged for only 1 day
prior to the donation of the essays.
We are not persuaded that this single
instance provides a proper basis to
value the petitioner’s services as a
consultant.
Petitioner also testified that if the
essays had been contracted for in an
open market, they would have produced a
bid of between $610,000 and $20,000. The
basis for petitioner’s opinion was his
previous experience in adminieterng
approximately $3 million worth of
technical assistance contracts for the
Ozark Regional Commission. Petitioner,
however, did not have final grant
authority with regard to these
technicel assistance contracts.
Furthermore, petitioner presented no
evidence regarding the similarity
APPENDIX 14 90
PAGE 12 OF 13
between the essays in issue and the work
product specified in the technical
assistance contracts that he helped
administer. We are not persuaded by
petitioners self-serving and
uncorroborated testimony.
On the basis of the entire record, and
keeping in mind that petitioner has the
burden of proof, ve have determined that
the essays had a value of $500 at the
time they were donated to the National
Council for Negro Women.
Section 274 provides in part that no
deduction shall be allowed under section
162 or 212 for any traveling expenses
unless the taxpayer substantiates, by
adequate records or by sufficient
evidence corroborating his own
statement, the amount of the expenses,
the time and place of the travel, and
the business purpose of the travel.
Petitioner contends that he expended
APPENDIX 14 91
PAGE 13 OF 13
$728.14 for travel between Little Rock,
Ark., Oklahoma City, Okla., and Austin,
Tex., during the period of February 1967
through May 1967. Respondent concedes
that this amount was actually spent for
travel during 1967 but argues that
petitioner has failed to establish the
business purpose of the travel.
Petitioner testified that the purpose of
these trips related to his business.
Petitioner has failed, however, to
present adequate records or
corroborating evidence to substantiate
the business purpose of the travel. See
William F. Sanford, SO T.C. 823 (1968),
affirmed per curiam 412 F.2d 201 tC. APPZ,
1969), certiorari denied 396 U.S. 841
(1969). Under these circumstances,
petitioner is not entitled to any
deductions with respect to his claim
of travel expenses.
Decision will be entered under Rule S50.
APPENDIX 15 92
PAGE 1 OF 1
BLACK’S LAW DICTIONARY
Abridged Fifth Edition
Definition:
"Spontaneous declaration. A statement
is admissible as a ""spontaneous
declaration”* if there was an occurrence
sufficiently startling to produce a
spontaneous and unreflecting statement,
if there was an absence of time to
fabricate, and if the statement related
to the circumstances of the
occurrence."
APPENDIX 16 723
PAGE 1 OF 1
AEROSPACE ENGINEERING
(Magazine)
APRIL 1989 EDITION
"Raytheon rolis-out AMRAAM”
"The U.S. Air Force is expected to
receive the first production Advanced
Medium Range Air-to-Air Missile (AMRAAM)
from the second-source contractor when
Raytheon Corp. roll out of the missile
in late February. AMRAAM will be a
""launch and leave"" radar guided
missile, designed to maintain air
superiority well into the next century.
AMRAAM is being produced by both Hughes
Aircraft Corporation and Raytheon.
Hughes rolled out its first production
missile iast October. The first
operaticnal AMRAAM is due to be
delivered to Tactical Air Command’s 3rd
Tactical Fighter Wing in Fall 1989."
APPENDIX 17 94
PAGE 1 OF 2
AVIATION WEEK AND SPACE TECHNOLOGY
Magazine: i987 Month Unknown
SCIENCE/SCOPE
1987 Hughes Aircraft Company
succession and scored two successes
despite evasive maneuvers by the target
drones. Both drones were flying at
26,000 feet above the White Sands
Missile Range in New Mexico. The F-16
was flying at approximately the same
speed, but 10,000 feet below the drones.
In the terminal phase of the flight, the
drones made evasive maneuvers, one a
sideways turn, the other a dive at
three times the force of gravity. Both
APPENDIX 17 93
PAGE 2 OF 2
AMRAAMB using their on-board active
radar continued to track to intercept.
This was the first multiple-launch for
the Hughes-built AMRAAM and the 20th
successful launch in 23 missions, the
most successful test program ever for a
complex missile. AMRAAM, under full
scale development for the U.S. Navy and
Air Force, is expected to increase the
effectiveness of the F-16 by a factor of
B81.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.