Petition for Writ of Certiorari — Buchbinder v. Franchise Tax Board of California

9 VLDL MAY 271998

No.

OFFICE OF THE CLERK

In The

Supreme Court for the United States

October Term, 1997

=

BRUCE BUCHBINDER, et ux.,

Petitioner,

FRANCHISE TAX BOARD, et al.,

Respondent.

+

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

=

PETITION FOR WRIT OF CERTIORARI

*

Bruce BucHBINDER

ELAINE BUCHBINDER

1178 Via Ferrari Drive

San Jose, California 95122

(408) 279-4054

Petitioners In Pro Se

tone

QUESTIONS PRESENTED

1. Whether the United States Court of Appeals for the

Ninth Circuit properly affirmed the United States District

Court's order dismissing the action for lack of jurisdiction

where:

(a). the United States District Court failed to discern the

distinction between the jurisdictional issues petitioner raised for

adjudication and issues of constitutionality as perceived by the

court relative to state direct taxation of income, and where the

Tax Injunction Act that barred petitioners’ claims before the

court did not apply to petitioners' persona, the court being

without evidence of a judicial determination that petitioner was

a taxpayer or that there was a tax liability in the instant matter;

and,

(b) the United States Court of Appeals gravely erred by

affirming the lower court's order dismissing the action over the

issue of substantibility, in that the state was a party in interest

to the outcome of the controversy, and in that the outcome of

petitioners’ case in a federal related matter attached to the

instant case, these issues being substantial issues leading to an

issue of violation of petitioners’ Right to due process secured by

the Constitution for the United States of America.

2. Does the arbitrary dismissal of petitioners' cause of action

before the United States District Court and the Ninth Circuit

Court of Appeals constitute a denial of proper due process and

right to meaningful access to the courts, in light of the

circumstances as a whole in the instant case?

3. Is federal jurisdiction proper for a case where the

petitioner has a secured Constitutional Right to due process,

pursuant to Amendment V of the Constitution for the United

States of America, such as in the instant case?

4. In that the Tax Injunction Act and Eleventh Amendment

did not apply to petitioners’ persona, was petitioner justified in

invoking its due process Right under the Constitution for the

United States of America, and raising a Federal Question of due

process right violation in response to state authorities violating

that right, especially when those state authorities have quasi-

judicial, legislative and executive powers, and especially in that

the state authonties are a party in interest to the outcome of the

controversy in the instant matter?

5. Can one Amendment of the Constitution of the United

States of America deny to a citizen, a Right guaranteed under

another Amendment, in a cause of action where the Eleventh

Amendment used to support respondent's motion to dismiss

would deny petitioner of a guaranteed due process Right under

Amendment V, and especially where the Amendment denying

the right did not apply to petitioners’ persona in the first place?

6. Is Statutory Law used to defeat constitutional law in

cases raising federal questions of due process right violations,

such as in the instant case, unconstitutional and of no effect?

7. Is federal jurisdiction proper for a case where issues of

law and fact in a related federal judiciary proceeding are

controlling, in that the state follows federal judiciary outcome in

matters of direct taxation of income, such as in the instant case;

in that respondent defaulted by waiver in the related federal

judiciary proceeding touching the instant case?

8. Does the waiver issue in a related federal case, attach to

the instant case in that the state follows federal judiciary

outcome in matters pertaining to direct taxation of income,

giving the federal judtciary jurisdiction in the matter?

SRF PALLET

«e*

9. Is federal jurisdiction proper for a case raising the waiver

issue, having its nexus in federal judiciary proceedings, properly

denominating such a case for federal subject matter jurisdiction,

such as in the instant case?

10. Is federal jurisdiction proper for a case where federal

law is the basis of the action at the state level, and does this

circumstance constitute a waiver of the Tax Injunction Act 28

U.S.C. 1341 and vice versa relative to 26 U.S.C. 7421; and

where federal law is the basis of state direct taxation of income

is it therefore an exception to 28 U.S.C. 1341?

11. Does the federal judiciary have original jurisdiction

pursuant Article III, Section 2, Clause 1, in such cases as the

instant case, in that the state follows the federal judiciary

outcome in matters of direct taxation of income, creating an

exception to the Tax Injunction Act?

iV

LIST OF PARTIES

Pursuant to Supreme Court Rule 14.1(b), Petitioner lists the

parties to the proceeding in the court below as follows:

Plaintiffs-Appellees

Bruce Buchbinder

Elaine Buchbinder

Defendants-Appellants

Franchise Tax Board, State of California

Board of Equalization, State of California

Table of Contents

Crees Freee ee eae

Table of Authorities. ......

Preliminary Statement

ORE NO 5. ORG os

Bn a tere ee geen Si ery tia ae

Constitutional and Statutory

Provisions Involved. ..... ee ae ge

Statement of the Case 2 ove ss

Reasons for Granting Writ

Concumon oS,

Index of Appendices

A. Ninth Circuit Order Summarily Affirming

District Court's Order Dismissing Action.

B. District Court Order Dismissing Action

A-1

B-1

a

vi

pag tee ee

Table of Authorities

Cases

Page

American Fire and Casualty v. Finn, (1950) 34 U.S.

6, 18; 71 S. Ct. 534; 95 L. Ed. 702; 19 ALR 738. . 14

American Water States Service Co. of California v.

Johnson (1939), 31 Ca 2d 606,88 P2d 770... . 9

Bialack v. Harsh, (1973) 463 F.2d 1185, 1186 (9th Cir.

1972 cert. den. 1973), 409 U.S. 1060, reh. den.

RUD Bi cs ie ee ae es ete iy 14 F

Boyd v. United States, (1886) 116 U.S. 616,635... . 22

Buchbinder v. Commissioner of Internal Revenue,

1145. Ct. GaSe: 126 LB 2660s a Eee {

Cole v. Macfarland, 337 S.W. 2d 453,455,456... . 10

Eisner v. Macomber (1920), 252 U.S. 189 | 8

Fisher v. U.S., (1976) 425 U.S.391 ... ; 13

Griffin v. Matthews, 310 F. Supp. 341, affd. 423

FE ess SP a er et eee oe 14

Haines v. Kerner (1972), 404U.S.519........ |

Lonas v. State 50 Tenn., 287,307 ..... 10

Maine v. Thibutout, (1979) 448 U.S. 1. ierahiys 14

Maxfield's Lessee v. Levy, U.S. 308........ 14

McNutt v. GMAC, (1936) 298 U.S. 178, 189: 56S. Ct.

Te, TO Bs BAO oe a oe ee ea

Merchants Loan and Trust v. Smietanka (1921), 255

> Bp | SEIN eee eg SUR ony en cn 9

Pollock v. Farmers Loan and Trust, 158 U.S 601 8

Price v. Johnson (1948), 344 U.S.266 ...... Pettey

Rosemary Properties (1947), 29C2d677...... 9

Smith v. Richert, 35 F. 3d 300 (7th Cir. 1994) . ‘ 13

Southern Pacific v. Lowe, 247 US 330,335... . 9

Vil

Thompson v. Gaskell, (1942) 315 U.S. 442, 446;

62 S. Ct. 673; 83 L.Ed. 1111 .. |

Thor Electronics, Inc, Cal. St. Bd. of Equal,

a eo) RE ae a ee ea ea fie Leics ape

West Publishing Co. v. McColgam (1946), 27

C2d 705 affd 328 U.S. 823 . .

Constitutional Provisions

Preamble to the Constitution of the United States

Article III

Article IV

Amendment |

Amendment V

Statutes

42 U.S.C Section 1983

The Corporate Excise Tax Act of 1909 (36 Stat

S ch. 11, 12)

Other References

"What Has Happened to Federal Jurisprudence”,

by Albert J. Schweppe, American Bar Association

Journal, Vol XXIV No. 6, June 1938. . .

9

9

ws we

db &

tN

PRELIMINARY STATEMENT

Petitioner Bruce Buchbinder and Elaine Buchbinder, who

are not trained in the complexities of legal practices, hereby

petition for a Writ of Certiorari, to the United States Court of

Appeals for the Ninth Circuit, for the purpose that a supervisory

Opinion may issue from this Honorable Court, reviewing the

actions of the United States District Court, and the United

States Court of Appeals for the Ninth Circuit.

The relief sought results from the subsequent ruling of the

District Court and the Ninth Circuit Court of Appeals, which

have effectively and substantially denied petitioners’

constitutionally protected and secured right to Redress of

Grievance and Due Process.

Additionally this case involves an issue of a waiver filed in

a previous Supreme Court case, Buchbinder v. Commissioner

of Internal Revenue, 114 S. Ct. 696; 126 L.Ed 2d 663, to

which the instant case is related in that the state follows federal

judiciary outcome in such matters, wherein respondent in the

previous case, knowingly and without coercion, waived its right

to file in the face of petitioners’ asserted facts and conclusions;

respondent thereby defaulting by waiver, pursuant to Supreme

Court Rule 15.5. This issue also involves a question of whether

such waiver attaches to the instant case from the previous case

above referenced.

The Petitioner, in appearing pro se, relies on Haines vy.

Kerner (1972), 404 U.S. 519, Price v. Johnson (1948), 344

U.S. 266, plus many others, in that "pro se," "pro per" litigants

are not held to the same standards as attorneys, appearing on

‘appeal’ in this Court.

ee ee eee

5

s

OPINIONS BELOW

The Order of Court of Appeals for the Ninth Circuit has not

been reported. It is copied and attached to the appendix hereto,

APP. A, infra. The Order Dismissing Action of the United

States District Court has not been reported. It is copied and

attached to the appendix hereto, APP. B, infra.

*

JURISDICTION

The Franchise Tax Board's Notices of Additional Tax

Proposed to be Assessed issued to the Buchbinders on

September 21, 1983. Thereafter, it was agreed to hold the case

in abeyance pending resolution of a related Tax Court case and

that the appeal be deferred pending the outcome of said case

before Tax Court; the State Board of Equalization agreeing to

defer further proceedings in the matter pending the related court

action. Upon resolution of the federal matter, the State Board

reopened the case, not cognizing the implication of the waiver

issue inherent in the federal proceeding. Subsequently, the

petitioner filed a timely petition to the Board of Equalization.

The final determination of the Board of Equalization was |

entered on June 26, 1997. Thereafter, the Buchbinders filed a

timely petition with the United States District Court raising a

federal question of violation of due process nghts. The

respondent by motion and memorandum argued for dismissal of

the Buchbinders' appeal for failure to state a claim citing to the |

Tax Injunction Act and Eleventh Amendment. The Order

Dismissing Action of the Court was entered on November 24,

1997. The Buchbinders then filed a timely Notice of Appeal to

the Ninth Circuit Court of Appeals. The case was filed and

docketed and a Time Schedule Order was issued by the court.

However, before the Buchbinders could submit their opening

brief, the court clerk raised the issue of ‘substantibility’ and

ordered the petitioner to show cause why the judgment in the

Ee ee ee

3

appeal should not be summarily affirmed. The order of the court

affirming the Order Dismissing Action of the District Court was

entered on February 26, 1998, with no further filings permitted.

Jurisdiction in the instant case is established under the

Preamble to the Constitution for the United States of America,

wherein it specifies responsibilities of the government for whom

the judges of this Land now labor under oath of office.

Jurisdiction of this Court to review the judgment of the

Ninth Circuit is invoked under 28 U.S.C. §1254(1).

Authority to proceed in this Court is by authority of the

people of the united States by their Constitution, Article III

section 2, clauses | and 2 in which this Court has Appellate

Jurisdiction.

e

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

Preamble to the United States Constitution

The Preamble to the United States Constitution provides:

We the People of the United States, in Order to

form a more perfect Union, establish Justice, insure

domestic Tranquility, provide for the common

defense, promote the general Welfare and secure

the Blessings of Liberty to ourselves and our

Posterity, do ordain and establish this Constitution

for the United States of America.

Articles to the United States Constitution

Article III, Section 2, Clause 1 provides in pertinent part:

The judicial Power of the United States, shall be

4

vested in one supreme Court, and in such inferior

Courts as the Congress may from time to time

ordain and establish.

Article IV, Section 2, Clause | of the United States Constitution

provides:

The Citizens of each State shall be entitled to all

Privileges and Immunities of Citizens of the several

States.

Amendments to the United States Constitution

Amendment I of the United States Constitution provides in

pertinent part:

Congress shall make no law respecting . . . the

right of the people peaceably to assemble, and to

petition the government for a redress of grievances

Amendment V of the United States Constitution provides in

pertinent part:

No person shall.... be deprived of life, liberty. or

property, without due process of law.

+

STATEMENT OF THE CASE

This case arose on September 21, 1983, when petitioner

received a Notice of Additional Tax Proposed to be Assessed

from the Franchise Tax Board. Petitioner filed a protest to the

Notice on November 16, 1983. Subsequently, petitioner

received a Notice of Action on June 10, 1987, stating that if

petitioner did not agree with the Notice, petitioner could file an

ie era eee

appeal with the State Board of Equalization. On or about July

31, 1987 the State Board acknowledged an appeal had been

filed, and it was later agreed that this case was to be held in

abeyance pending federal judiciary outcome of a related federal

matter and court action. Such related matter ultimately resulted

in petitioner appealing its federal case to the United States

Supreme Court in Buchbinder v. Commissioner of Internal

Revenue, 114 S. Ct. 696, 126 L.Ed 2d 663, leading to issues

bearing on the instant matter; in particular, the waiver issue

Petitioner alleged before the State Board that the waiver in

the above referenced case attached to the instant case and

therefore, in that the state follows the outcome of the federal

judiciary in matters of direct taxation of income, it followed that

the matter was resolved upon the issue of the waiver, that being

the primary threshold issue in the instant case. (Petitioner would

later contend in taking its case before U.S. District Court that

this issue was one of the main issues that made the instant case

proper for federal jurisdiction and determination. )

A secondary issue brought before the State Board of

Equalization was the issue of jurisdiction, wherein petitioner

challenged the Franchise Tax Board and State Board's

jurisdiction and alleged that personam jurisdiction relative to the

matter had been invoked by fraud.

The State Board of Equalization ignored petitioners’

specifically worded issues and denied any review on any of

those issues, other than to raise their incredulousness on the

issue of the waiver, and thereafter issued their arbitrary and

capricious decision on April 10, 1997.

On May 5, 1997, petitioner filed a Petition for Rehearing to

the State Board and in its Petition for Rehearing, petitioner took

issue with the State Board's determination, and pointed out to

6

the Board material points of law and fact overlooked in their

decision. Nevertheless, the State Board on June 26, 1997

denied the Petition for Rehearing and affirmed its order of April

10, 1997.

Petitioner, subsequently on September 23, 1997, filed a

Petition for Judicial Determination and Declaratory Judgment on

Issues of Law in United States District Court for the Northern

District of California, invoking its Due Process rights under

Amendment V, on the jurisdictional grounds that the U.S.

District Court was the proper forum for its grievances, in that

petitioner had exhausted all administrative appeals with the State

Board of Equalization, citing authority to proceed in that court

by authority of the people of the united States by their

Constitution, Article III, Section 2, Clause 1, in which the court

had original jurisdiction; petitioner thereby exercising its

secured Right to petition for Redress of Grievance pursuant to

Article IV, Section 2, Clause 1, Amendment I, and IX of the

Constitution for the United States of America. The petitioner

took the appeal from the final decision entered by the State

Board of Equalization, raising a case and controversy arising

under the Constitution for the United States, therefore the case

was properly brought before the court under the provisions of

Article III, Section 2 of the Constitution for the United States,

and was. entitled to be treated as such. As a result of the

constitutional nature of the case, it was entitled to be reviewed

by Judges completely endowed with the powers and immunities

of Article III, Section 1 of the Constitution. This Constitutional

guarantee of review was an impossibility before the State Board

of Equalization, and completely denied the Buchbinders' full

Due Process of the Law. None of the legal and factual issues

raised by the Buchbinders were given any substantial legal

analysis by the State Board nor was a well-reasoned conclusion

relative to these issues entered by the Board.

7

Petitioner claimed in its petition to the U.S. District Court

that:

1. Petitioners’ appeal to the State Board raised more than

a single argument, involving mixed questions of law and fact,

of Constitutional import, that were not properly addressed in

the decision issued by the State Board of Equalization, in

particular the issue of the Franchise Tax Board not informing

petitioner of the nature of the "Excise Taxable Activity" it was

involved in to create a basis for a proper and valid assessment.

Specifically, the Franchise Tax Board did not inform petitioner

WHAT Excise Taxable Activity it was involved in that would

create an "income tax liability" to provide a basis for a proper

and valid assessment.

2. Petitioners’ appeal to the State Board also raised the

waiver issue, accompanied by supporting documentation, and

the State Board's decision did not reflect an adequate review of

this issue, nor the other issues raised by petitioner

3. In its Memorandum of Decision, filed April 10, 1997, the

State Board reduced petitioners’ multiple arguments to a single

issue, namely whether petitioner presented any evidence

showing that the Federal Government truly waived the related

assessments, and further arguing that the Franchise Tax Board's

assessments were not based upon Federal assessments, but

rather based upon the Franchise Tax Board's own audit of

petitioner, ignoring the important issue of WHAT constitutes a

valid and proper assessment relative to the Franchise Tax

Board's failure to identify the "Excise Taxable Activity" that

would provide such basis, and thus keep State statutes in

harmony with Federal statutes relative to taxation of income,

this being the basis of petitioners’ claim that said assessments

were in error. Further, petitioner in raising its contentions,

was arbitrarily characterized as raising frivolous arguments by

the State Board, arguments the State Board characterized as not

8

being supported by the statutes and cases cited by petitioner in

its Reply Brief, this characterization being patently UNTRUE.

This arbitrary and unfair treatment of petitioner gave the State

Board of Equalization the excuse to deprive petitioner of any

legal analysis to the arguments raised by petitioner in its Reply

Brief, and pre-empted the State Board from producing any

evidence to the contrary. Therefore, the State Board, because

it perceived the petitioner as having failed to present any

evidence demonstrating that the Franchise Tax Board's

assessments were erroneous, when in fact petitioner documented

the fact that the state personal income tax was in the nature of

a corporate income tax and thus not applicable to the petitioner,

and therefore lacking in personam jurisdiction and grounded in

fraud; nevertheless the State Board took it upon itself to

unjustifiably characterize petitioners’ unpopular contentions as

being frivolous and without merit, thus depriving petitioner of

proper Due Process of Law.

4. Petitioner alleged its arguments were neither unitary nor

so simple as that characterized by the State Board's decision. To

the contrary, petitioner argued, among other things, that the

Franchise Tax Board had not identified the "Excise Taxable

Activity" that would give proper and valid basis to the

assessment, and that the state personal income tax was either a

direct tax or indirect tax like the federal income tax, citing to

Pollock v. Farmers Loan and Trust, 158 U.S. 601 and Eisner v.

Macomber (1920), 252 U.S. 189; the enabling legislation of the

Tax Codes being, 7he Corporate Excise Tax Act of 1909 (36

Stat S ch. 11, 12) ; limited by restrictions placed by the

Constitution, and in the nature of a corporate income tax.

Petitioner further contended that the Franchise Tax Board had

not identified that activity which petitioner was involved in that

created the so-called “income tax liability", further arguing that

such cannot be based on what was previously done in former

years, as previous filings may have been actually in error due to

9

fraud and extortion demands made upon petitioner by the

Franchise Tax Board ab initio, relating to some pretended

requirement of filing returns; and that a liability was not created

by a demand to file a return, or that a return was filed

previously, or that conditions of former years apply

automatically in the present year or any subsequent year. The

petitioner further arguing, that the California Courts and the

State Board of Equalization itself, had declared that the

"Franchise Tax" is based on the Profit made within the taxable

year because it was a corporation, citing to American Water

States Service Co. of California v. Johnson (1939), 31 Ca 2d

606, 88 P2d 770; West Publishing Co. v. McColgam (1946), 27

C2d 705 affd 328 U.S. 823; Rosemary Properties (1947), 29

C2d 677, and in particular showing to the State Board that in

the Appeal of 7hor Electronics, Inc, Cal. St. Bd. of Equal, Feb.

4, 1975, the State Board clearly stated on February 4, 1975,

that "the franchise tax is not a tax on property or income; it is an

excise tax on the privilege of exercising the corporate franchise

which is measured by the corporation's net income", petitioner

further showing to the State Board, that it was declared that

income meant corporate profits and that the tax was based upon

the benefit of exercising the corporate privilege, measured by the

corporate profit, citing to Merchants Loan and Trust v.

Smietanka (1921), 255 US 509 wherein the High Court

stated:

"It is obvious that these decisions in a

rule the case at bar if the word ‘income’ has

the same meaning in the Income Tax Act of

1913 that it had in the Corporation Excise Tax

Act of 1909, and that it has the same scope of

meaning was i# effect decided in Southern

Pacific v. Lowe, 247 US 330, 335 ... where it

was assumed for the purposes of decision that

there was no difference in its meaning as used in

the Act of 1909 and in the Income Tax Act of

1913 (38 Stat 114). There can be no doubt that

10

the word must be given the same meaning and

content in the Income Tax Acts of 1916 and

1917 that it had in the Act of 1913. When to this

we add that in Eisner v. Macomber, supra, a

case arising under the same Income Tax Act of

1916 which is here involved, the definition of

‘income’ which was applied was adopted from

Stratton's Independence v. Howbert, Supra,

arising under the Corporation Excise Tax Act of

1909, with the addition that it should include

‘profit gained through the sale or conversion of

capital assets,’ there would seem to be no room

to doubt that the word must be given the same

meaning in all of the Income Tax Acts of

Congress that was given to it in the Corporation

Excise Tax Act, and that what that meaning is

has now become definitely settled by decisions

of this Court." At 519 (Emphasis added).

And, further citing to the Tennessee Supreme Court in Cole v.

Macfarland, wherein that High Court stated:

"Legislature can name any privilege a taxable

privilege and tax it by means other than an income

tax, but the legislature cannot name something to

be a_ taxable privilege unless it is first a

privilege... ‘Privileges are special rights,

belonging to the individual or class, and not the

mass; properly, an exemption from some general

burden, obligation or duty; a right peculiar to

some individual or body.' Lonas w. State 50

Tenn., 287, 307. Since the right to receive income

or earnings is a right belonging to every person,

this right cannot be taxed as a privilege." 337

S.W. 2d 453,455,456.

5. Further, petitioner raised the waiver issue, which had a

determining effect on the instant case in that the State follows

1]

the Federal findings, subject to Federal Judiciary outcome ; and

furthermore touching the issue of whether the federal tax

assessment had been paid, petitioner bringing to the State

Board's notice, that since the Federal Government defaulted

pursuant to waiver, and the Federal Government, based on its

default, and its attempts to further the action blocked by

Estoppel in Pais, Estoppel by Laches and Collateral Estoppel;

therefore, there were no grounds for the Federal tax assessment,

the Federal Government being estopped from further collection

activity in this matter. Therefore, petitioner alleging the matter

was resolved in that the State follows the outcome of the

Federal Judiciary in these matters, this matter was resolved upon

the issue of the waiver, that being the threshold issue in the

instant case. However, relative to this matter, the State Board

chose to ignore this important principle of law; nevertheless, the

State Board's disregard of the waiver issue in no respect

denigrated the issue nor did it eliminate it. In fact, the State

Board's ignoring this issue raised a multiplicity of other issues

impinging upon U.S. Constitutional Law, in particular the issue

of Redress of Grievance and Due Process, this touching the

relationship between Federal and State Law, and the relationship

between the Internal Revenue Service and the Franchise Tax

Board, among other things.

6. Consequently, under authorities cited in petitioners’ brief

and based on its peculiar factual situation, petitioner contended

therein that its proper legal status was that of non-taxpayer, and

that the assessment in question was false and therefore not valid.

Given that status and circumstance, petitioner logically

concluded that there were no grounds for the deficiency

assessment made by the Franchise Tax Board. Furthermore,

notwithstanding anything to the contrary, the State Board's

decision ignored, the relevant issue of the waiver, briefed

extensively in petitioners’ reply brief, and documentation in a

full- blown "Exhibit" to the brief, containing all relevant

12

information, concerning this matter

7. None of the pertinent issues advanced by petitioner

were adequately addressed in the Memorandum of Decision

issued by the State Board, thus resulting in the affirmation of the

Appeal in favor of the Franchise Tax Board, and in violation of

petitioners’ Due Process Rights.

8. Having collapsed all of petitioners’ substantive

arguments, and its contention of case law as well, into the

single proposition that petitioner did not present any evidence

that the Federal Government truly waived the related

assessments and that all the arguments made by petitioner were

frivolous, the State Board's Memorandum of Decision

necessarily left unanswered and unaddressed essentially all of

petitioners’ material points of law and faci which petitioner had

actually raised in its brief, including the relevant waiver issue.

In addition to the above claims made in its petition to the

U.S. District Court, petitioner further claimed it had not

received the Scope of Review that it was entitled to under State

equivalent Statutes to the Administrative Procedures Act, Title

5, Section 706, and other State Statutes and Government Codes

enacted to protect petitioners’ Due Process Rights pursuant to

Amendment V of the United States Constitution, to effect

harmony between Federal and State law regarding the matter of

Due Process; whereas the United States Constitution is the

Supreme Law of the Land (See U.S. Constitution, Article VI,

Section 2) and recognized as the Supreme Law of the Land by

the California Constitution, in Article III, Section 1.

On October 9, 1997, while petitioners Petition to the United

States District Court was pending, respondent filed a Notice of

Motion to Dismiss Complaint and a Memorandum of Points and

Authorities in Support of Motion to Dismiss Complaint. In its

13

memorandum supporting its motion, respondent cited to the Tax

Injunction Act and the Eleventh Amendment further citing to the

Seminole Indian case. Petitioner opposed the Motion on the

grounds that the Tax Injunction Act and Eleventh Amendment

did not apply to petitioners’ persona in the instant matter.

With reference to the Tax Injunction Act, petitioner had

brought before the lower court an action seeking a

determination of rights and due process. Respondent opposing

petitioner, claimed the lower court lacked jurisdiction in the

matter, and in support of its motion to dismiss the instant case

from the lower court cited to the Tax Injunction Act and

Eleventh Amendment. However, petitioner pointed out the Tax

Injunction Act lacked jurisdiction over it, because no tax liability

had ever been established; therefore, there was no tax to injunct.

Further pointing out as such, respondent's arguments were

unsupported and irrelevant and did not apply to petitioner;

therefore respondent's arguments did not support its motion to

dismiss. The record of the federal courts in enforcing civil

rights made respondent's position a confusing position in this

regard unless the Tax Injunction Act set aside the provisions of

the Bill of Rights, and the rulings of the Supreme Court in

Fisher, Doe, and related circuit cases such as Smith v. Richert.

See Fisher v. U.S., (1976) 425 U.S. 391; United States v.

Doe, (decided 2-28-1984) S.Ct #82-786; and Smith v. Richert,

(7th Cir. 1994) 35 F. 3d 300. Petitioner pointing out that due

process violations are not protected by the Tax Injunction Act

nor the Eleventh Amendment, and fall within the domain of 42

U.S.C Section 1983, a mandate upon the Federal Courts to

protect constitutional rights.

Petitioner originally raised issues of a jurisdictional nature

at the state level, that went to the taxing power of respondent in

the instant case. Jurisdiction once challenged is to be proven by

the party attempting to assert jurisdiction (in this case the

14

respondent). The burden of proof of jurisdiction lies with the

asserter. (See McNutt v. GMAC, 298 U.S. 178, 189. The

origins of this doctrine of law may be found in Maxfield'’s

Lessee v. Levy, U.S. 308. "He who asserts jurisdiction,

upon challenge to same, must plead and prove it"; McNutt v.

GMAC, (1936) 298 U.S. 178, 189: 56S. Ct. 780; 80 L. Ed.

1135; Griffin v. Matthews, 310 F. Supp. 341, aff'd. 423 F. 2d

272; Thompson v. Gaskell, (1942) 315 U.S. 442, 446; 62 S.

Ct. 673; 83 L. Ed. 1111; and is so limited that even the

plaintiff can plead absence of jurisdiction if the ruling is adverse

to him and shall prevail American Fire and Casualty v. Finn,

(1950) 34 U.S. 6, 18; 71 S. Ct. 534;95 L. Ed. 702; 19 ALR 738

and so may a defendant, even if a case is litigated to the end and

a judgment rendered, Bialack v. Harsh, (1973) 463 F.2d 1185,

1186 (9th Cir. 1972 cert. den. 1973), 409 U.S. 1060, reh.

den. 410 U.S. 948. That jurisdiction can be challenged at any

time, is a well settled precept of law. Upon a square challenge,

jurisdiction cannot be assumed and remains an open question.

Maine v. Thibutout, (1979) 448 US. 1.

Since jurisdiction was still an open question in the instant

case, the tax liability alleged by respondent was not established

and the issue of tax collection was moot. Before collection of

taxes, the court had to decide if such collection was lawful and

if there was a lawful tax liability by adjudicating the question of

jurisdiction.

Therefore the pretense of injunction, enjoinment,

suspension, restrainment or interference as relates to state

revenue collection procedures was out of place and without

merit, in addition to being blatantly presumptuous. The lower

court was without evidence that the Tax Injunction Act applied

to petitioner; therefore the judge must have relied on extra

record, heresay material that the Act applied to petitioner. The

Tax Injunction Act not operating upon petitioner in the instant

15

case -- as there was nothing to enjoin the UNLAWFUL

collection of tax. The Tax Injunction Act only operates for the

lawful collection of tax; however, there was no certifiable

evidence of a lawful tax in the instant case as respondent had not

presented any certifiable evidence of a lawful tax, and the court

was without evidence of a judicial determination that petitioner

was a taxpayer or that there was a tax liability in the instant

matter.

The Tax Injunction Act not applying to petitioner because

no tax liability had ever been established; petitioner contesting

respondent's jurisdiction on the basis that personam jurisdiction

had been invoked by fraud; and respondent not objecting in a

timely fashion to petitioners’ claims, the claims were deemed

admitted pursuant FRAP 8 (d); thus tax liability not having been

established and jurisdiction contested and still an open question,

there was no tax liability nor tax to enjoin pursuant to the Tax

Injunction Act. Therefore, the Tax Injunction Act was a moot

issue and should never have been cited by respondent in the

instant matter.

The other argument raised by the respondent involved the

Eleventh Amendment and a cite to the Seminole Indian case.

With respect to the Eleventh Amendment, respondent misled the

lower court citing to the Seminole Indian case, as that case did

not fit the fact pattern of the instant case that was before the

court. The Eleventh Amendment and provisions thereto were

not the issue in the instant case, as the Seminole Indians do not

have an agency relationship with the federal government with

respect to tax matters. The citation on the Seminole Indian case

was an obvious attempt on the part of the respondent to mislead

the lower court. Petitioner is not a Seminole Indian of the

Seminole Indian tribe. Said Seminole Indians and Seminole

tribe exist under separate jurisdiction [Foreign State

jurisdiction]. Petitioner is not within Seminole Indian tribe

16

jurisdiction nor pled to such jurisdiction, nor to their immunities

or protections. Petitioner is domiciled in the State of California,

and therefore, is not Citizens of another State or Foreign State.

Petitioner was bringing suit against the State wherein petitioner

is domiciled, and unlike the Seminole Indians and Seminole

Indian tribe is not domiciled in a State foreign to the States

united, but is a Citizen of one of the several Sovereign

Republican States of the contiguous States united by the

Constitutional compact of the United States of America.

Therefore the issue of the Eleventh Amendment was a moot

issue and should never have been cited by respondent in the

instant matter.

The Order Dismissing Action of the District Court was filed

on November 24, 1997. In the Order the judge granted the

respondent's motion on the grounds that petitioners’ claims were

barred by the Tax Injunction Act, and brought up the issue of

constitutionality, thus confusing the issues raised by petitioner.

The judge erred in bringing up the issue of constitutionality of

taxes, when in fact nowhere in the pleadings did petitioner raise

that particular issue. Petitioner would like to point out that they

never challenged the constitutionality of the state's taxing power;

their challenges were instead jurisdictional in nature --

jurisdiction being the threshold issue.

On December 17, 1997, petitioner timely filed a Notice of

Appeal to the Ninth Circuit Court of Appeals. On December

24, 1997, the Ninth Circuit issued a Time Schedule Order

setting April 6, 1998 as the filing date for petitioners’ opening

brief. However, in the interim, on January 17, 1998, the deputy

clerk of the Ninth Circuit issued an order on behalf of the clerk

of the court to petitioner stating therein that in her view the

appeal might be proper for summary disposition because the

questions on which the decision in the appeal depended might be

so ‘insubstantial’ as to not justify further proceedings and

17

ordered the petitioner to show cause why the judgement in the

appeal should not be summarily affirmed.

On January 29, 1998, petitioner filed a response to the

clerk's order, showing the substantial nature of the issues raised

by petitioner. In their response the petitioner showed to the

court among other things, that the U.S. District Court was the

proper court for subject matter jurisdiction in the instant case as

the waiver issue raised by petitioner was an issue rising out

of federal judiciary proceedings; and being that the waiver issue

had its nexus in the federal judiciary process, the federal courts

were best suited to deal with it; the waiver issue being a

complex and delicate question having its nexus in the federal

judiciary process, petitioner arguing that if this question was to

be properly addressed, it had to be addressed on the federal

level; petitioner contending that no state court was proper venue

for complex questions of law and fact raised by petitioner, such

as the waiver issue in the instant case.

Further, petitioner contending the case was a proper case

for federal court jurisdiction because the United States

Constitution is the Supreme Law of the Land and the ultimate

arbitrator on issues of Due Process; petitioner further

contending statutes involving federal income tax are the

controlling law and state law is subordinate, in that the state

follows federal judiciary outcome in matters pertaining to direct

taxation of income, as in the instant case.

Petitioner contending that the case was not a proper case for

the state court system in that the state was a party in interest,

and that notwithstanding anything to the contrary, the petitioner

had exhausted all administrative remedies on the state level and

that the state lost primary jurisdiction in the instant matter

because of due process violation and therefore, it would be

futile to exhaust any further remedies on the state level.

18

In the order issued by the deputy clerk of the Ninth Circuit

on January 17, 1998, petitioner was given twenty-one (21) days :

from the date of the order to file a response, and respondent was

given ten (10) days from the date of service of the response to

file a reply to petitioners’ response. Petitioner timely filed their

response to the clerk's order on January 29, 1998. However,

respondent did not reply and rebut petitioners’ claims and

assertions, and therefore such claims and assertions are deemed

admitted pursuant FRAP 8 (d).

Nevertheless, on February 28, 1998, the Ninth Circuit

summarily affirmed the District Court's Order of November 24,

1997, arbitrarily and capriciously dismissing the action for lack

of jurisdiction without opinion, with no motions for

reconsideration, rehearing, clarification, stay of the mandate, or

any other submissions permitted.

@

REASONS FOR GRANTING WRIT

Petitioner in coming before the federal court system, invoked

jurisdiction of the lower courts pursuant to the United States

Constitution, Article III, Section 2, Amendment I and

Amendment V, petitioner having raised a Federal Question

involving petitioners’ Right to due process secured by the

Constitution for the United States of America.

The questions raised in this appeal by petitioner involve a

matter of due process and a question as to whether statutory law

used to defeat constitutional law in cases raising federal

questions of due process right violations, is unconstitutional and

of no effect, i.e. whether a statute or act such as the Tax

19

Injunction Act can preclude petitioner from a constitutionally

guaranteed right to due process secured by the Constitution for

the United States of America. Further there is a question of

whether the Tax Injunction Act that barred petitioners' claims

before the lower court even applied to petitioners’ persona

because of jurisdictional issues raised by petitioner from the

beginning (this being an issue of contention). As such this

question is a question of paramount importance, and in that the

lower courts did not do their duty and hear the question, it

adversely impacted the due process right of petitioner in this

matter.

Neither the Tax Injunction Act nor Eleventh Amendment

apply to petitioners’ persona as the lower court was without

evidence of a judicial determination that petitioner was a

taxpayer or that there was a tax liability in the instant matter;

and as to the Eleventh Amendment and cite to the Seminole

Indian case, it did not fit the fact pattern of the instant case as

the Eleventh Amendment was not at issue and petitioners were

not Seminole Indians. As the Tax Injunction Act and Eleventh

Amendment were the only grounds for respondent's motion to

dismiss, therefore respondent's motion was groundless and

without merit and as such defective and the lower court (here

the U.S. District Court) should never have granted it, nor should

the Ninth Circuit have affirmed the lower court's order. Further,

the District Court judge confused the issues by characterizing

the jurisdictional issues petitioner had raised as constitutional tax

issues. In light of these errors and the controversial waiver issue

in petitioners’ federal related case, and in that the state was a

party in interest to the outcome of the controversy, the lower

court's action and the Circuit Court's affirmation clearly

_ constitutes a denial of Right to proper due process secured by

the Constitution for the United States of America and Right to

meaningful access to the courts.

20

The Congress of the United States has granted jurisdiction

to the lower federal courts over the issues raised in petitioners’

petition with respect to both state and federal issues pursuant to

28 U.S.C., paragraphs 1331, 1332, and 1333 [savings to suitors

clause]. But more importantly, the Constitution for the United

States of America, and the Constitution for the State of

California demand that these courts enforce the laws of the

United States as enacted by Congress to preserve Constitutional

Rights, and Civil Rights, as well as to due process.

In an article touching on this subject, written by Albert J.

Schweppe, in the American Bar Association Journal, Vol XXIV

No. 6, June 1938, entitled "What Has Happened to Federal

Jurisprudence", Mr. Schweppe made the following point:

"At least, a Federal Court sitting in a particular

state is just as much a court of final adjudication

as is a state court, and such a Federal Court is

quite as competent to determine the law of that

particular state as is a State Court. This the

Constitution clearly intended; and a Federal Court

cannot escape this duty, whether the local law-be

clearly declared on the particular point or not, and

even if it not be declared at all."

This petitioner had no remedy at law at the state level as was

demonstrated by the inability of the State Board to adequately

address the issues brought before it, such issues involving mixed

questions of law and fact by which the historical facts had to be

concluded before the applicable law could be applied; involving

a subcategory of the mixed question doctrine, which is a

"Constitutional fact" question involving applications of

constitutional principles to the factual determinations; involving

important questions concerning the scope and meaning of

United States Supreme Court decisions, relative to the issue of

at a ice Bo a area

2]

taxation touching both federal and state taxing systems, thus

three substantial questions, that all had to be reviewed together

before just findings and conclusions can be arrived at in the

instant matter.

Further, the questions raised in this appeal involve a question

as to whether the outcome of petitioner's case in a federal

related matter attaches to the instant case, and whether issues of

law and fact in that related federal judiciary proceeding are

controlling in the instant case. Significantly, such issues include

the waiver issue involving a question of paramount importance.

In this regard, petitioner initially apprised the Franchise Tax

Board and the State Board of Equalization that issues relating

to the year in question, had been litigated in a federal related

case in United States Tax Court, and that the decision of the Tax

Court had been appealed to the United States Court of Appeals

for the Ninth Circuit, and subsequently to the United States

Supreme Court and that upon appeal to the Supreme Court, the

respondent in that federal related case had defaulted pursuant to

waiver, petitioner claiming that the waiver in face of

petitioners’ asserted facts and conclusions served to leave

petitioners’ allegations uncontested before the Supreme Court,

thereby leaving respondent unable to later act in contravention

to those allegations leaving no grounds for further action in the

matter, petitioner claiming a default judgement against

respondent in that related case; and in that respondent in that

case did not object to petitioners’ claims, petitioners' claims were

deemed admitted pursuant FRAP 8 (d), all touching the instant

case. Upon apprising the Franchise Tax Board and State Board

of Equalization of this, they responded with incredulousness,

apparently not being able to cognize the issue. However,

nonetheless, the State Board's ignoring this issue raised a

multiplicity of other issues impinging upon U.S. Constitutional

Law, in particular the issue of Redress of Grievance and Due

Process, this touching the relationship between Federal and

22

State Law, and the relationship between the Internal Revenue

Service and the Franchise Tax Board, among other things.

The instant case was a proper case for federal court

jurisdiction not only because the state follows federal judiciary

outcome in matters pertaining to state direct taxation of income,

but also because the waiver issue was the primary issue raised by

petitioner before the State Board of Equalization. The waiver

issue is a complex and delicate question that had its nexus in the

federal judiciary process in a federal related case to the instant

case, and if this question was to be properly addressed it had

to be addressed on the federal level due to the nature of the

issue. Therefore, no state court was proper venue for complex

questions of law and fact raised by petitioner, such as the waiver

issue in the instant case.

On the other hand, the case was not a proper case for the

state court system in that the state was a party in interest to the

outcome of the controversy in the instant matter, and that

notwithstanding anything to the contrary, the petitioner had

exhausted all administrative remedies on the state level, and the

state lost primary jurisdiction in the instant matter because of

due process right violations, and therefore, it would have been

futile to exhaust any further remedies on the state level.

The U.S. District Court below erred grievously in dismissing

petitioners’ cause of action. And the Ninth Circuit Court only

served to compound the error. To remember the words of Boyd

v. United States, (1886) 116 U.S. 616, 635 :

It is the duty of courts to be watchful for the

constitutional rights of the citizen, and against

any stealthy encroachments thereon. Their motto

should be Obsta Principiis.

23

Invoking Obsta Principiis, this Court must

exercise its supervisory powers to resolve a far

reaching dilemma in judicial proceedings

There is a far-reaching dilemma that must be resolved in the

instant case. An important issue that bears upon the supervisory

role of this Honorable Court is the issue of the arbitrary

dismissal of petitioners' cause of action before the United States

District Court and Ninth Circuit Court of Appeals, and whether

their action constitutes a denial of proper due process, and Right

to meaningful access to the courts.

The question asks: does the arbitrary dismissal of petitioners’

cause of action before the United States District Court and the

Ninth Circuit Court of Appeals constitute a denial of proper due

process and right to meaningful access to the courts taking into

consideration the circumstances as a whole in the instant case?

This Court should grant certiorari in order to resolve this

important issue and other issues that the lower courts refuse to

address, in order that this petitioner receive a full and meaningful

review and substansive due process as guaranteed to them as a

secured Right of the Constitution for the United States of

America.

i

CONCLUSION

Being that petitioner raised a Federal Question of due

process right violations pursuant Article III, Amendment I and

Amendment V of the Constitution for the United States of

America, and invoked federal jurisdiction to protect their

secured Constitutional Rights, thereby exercising their secured

Rights; and especially in light of the controversial waiver issue

24

in petitioners’ federal related case in that the state follows federal

judiciary outcome in matters of direct taxation of income, and in

that the state was a party in interest to the outcome of the

controversy, and in that the Tax Injunction Act and Eleventh

Amendment did not apply to petitioners’ persona, and in that the

judge confused the issues by characterizing jurisdictional! issues

as constitutional tax issues, the action of the lower courts in the

instant case clearly constitutes a denial of petitioners’ Right to

proper due process secured by the Constitution for the United

States of America and Right to meaningful access to the Courts.

Since neither the Tax Injunction Act nor Eleventh

Amendment applied to petitioners’ persona, these being the

only grounds for respondent's motion to dismiss before the

U.S. District Court, therefore respondent's motion was

groundless and without merit and as such defective, and the

lower court should never have granted it nor should the Ninth

Circuit have affirmed it.

Therefore for the reasons stated herein and in the record,

this petition for a writ of certiorari should be granted.

Respectfully submitted,

Bruce BucHBINDER

ELAINE BUCHBINDER

1178 Via Ferrari Drive

San Jose, California 95122

(408) 279-4054

Petitioners in Pro Se

DATED: May 21, 1998

ee

APPENDIX A-- NINTH CIRCUIT ORDER

SUMMARILY AFFIRMING

DISTRICT COURT'S ORDER

DISMISSING ACTION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRUCE BUCHBINDER, ) No. 97-17393

ELAINE BUCHBINDER, )

) DC# CV-97-20838-SW

Plaintiffs-Appellants, ) Northern California

VS. (San Jose)

)

)

FRANCHISE TAX BOARD, ) ORDER

et al., )

)

)

Defendants-Appellees. (Filed Feb. 26 1998)

Before: PREGERSON, CANBY, and LEAVY, Circuit Judges

Upon review of the record and appellants’ response to this

court's January 12, 1998 order to show cause, this court hereby

summarily affirms the district court's November 24, 1997 order

dismissing the action for lack of jurisdiction. See 28 U.S.C.

§1341; National Private Truck Council v. Oklahoma Tax

Commission, 115 S. Ct. 2351, 2354 (1995).

No motions for reconsideration, rehearing, clarification,

A-1

stay of the mandate, or any other submissions shall be filed or

entertained in this closed docket.

AFFIRMED.

PSMoCal 2/24/98/sg

12

A-2

APPENDIX B -- DISTRICT COURT ORDER

DISMISSING ACTION

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

)

BRUCE BUCHBINDER, and_ ) CIVIL No. 97-20838 SW

ELAINE BUCHBINDER, )

)

Plaintiffs, )

) ORDER DISMISSING

) ACTION

V. )

)

FRANCHISE TAX BOARD, _) (Filed Nov. 24, 1997)

STATE OF CALIFORNIA, and )

BOARD OF EQUALIZATION, )

STATE OF CALIFORNIA,

)

)

Defendants. )

Pro se plaintiffs Bruce and Elaine Buchbinder

("Plaintiffs") initiated this action seeking a judicial determination

and declaratory judgment on issues brought before the State

Board of Equalization in connection with a Notice of Proposed

Assessment from the Franchise Tax Board.

Defendants Franchise Tax Board and Board of

Equalization ("Defendants") now move to dismiss for lack of

jurisdiction and failure to state a claim upon which relief can be

B-1

granted, pursuant to Federal Rules of Civil Procedure 12(b)(1)

and 12(b)(6). For the reasons set forth below, the Court hereby

GRANTS Defendants’ motion and DISMISSES this action with

prejudice.

I, Background

Plaintiffs invested in two tax shelters, "Financial

Securities Corporation" and "Horticultural Research Ltd." In

1980, Plaintiffs claimed a $20,923 loss on their tax returns in

connection with Financial Securities Corp., and in 1981 they

claimed a $77,558 loss from Financial Securities Corp. and a

$49,500 partnership loss from Horticultural Research Ltd. After

an audit by the State Franchise Tax Board ("FTB"), those

deductions were disallowed, and the FTB sent Plaintiffs a Notice

of Additional Tax Proposed to be Assessed. In addition, an

unsubstantiated 1980 $821 Schedule C deduction was

disallowed.

Plaintiffs filed a protest to the Notice, and subsequently

received a Notice of Action from the FTB. This Notice stated

that if Plaintiffs did not agree with the Notice they could file an

appeal with the State Board of Equalization ("SBE").

Plaintiffs appealed to the SBE in conformity with the

California Revenue and Taxation Code. On April 10, 1997, the

SBE sustained the FTB's decision. On May 5, 1997 Plaintiffs

B-2 *

filed a Petition for Rehearing the Appeal before the StateBoard

of Equalization, and on June 26, 1997 that Petition was denied.

Plaintiffs then filed this action in Federal District Court.

Il. Legal Standard

Dismissal is appropriate under Rule 12(b) (1) when the

district court lacks subject matter jurisdiction over the claim.

Dismissal under Rule 12(b)(6) for failure to state a claim will be

denied unless it appears that the plaintiff can prove no set of

facts which would entitle it to relief. Conley v. Gibson, 355 U.S.

41, 45-45 (1957), Fidelity Financial Corp, v. Federal Home

Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir.

1986), cert. denied, 479 U.S. 1064 (1987). All material

allegations in the complaint will be taken as true and construed

in the light most favorable to the plaintiff. NL Indus,, Inc. v

Kaplan, 792 F 2d 896, 898 (9th Cir. 1986).

Ill. Discussion

The Tax Injunction Act provides "[t]he district court

shall not enjoin, suspend, or restrain the assessment, levy, or

collection of any tax under State law where a plain, speedy,

and efficient remedy may be had in the courts of such State." 28

U.S.C. §1341. The act applies not only to suits for injunctive

relief, but also to declaratory actions, Nat'l Private Truck

B-3

Council v. OKL Tax Comm'n, 115 S.Ct. 2351, 2354 (1995), and

suits for tax refunds, Marvin F. Poer and Co. v. Alameda, 725

F.2d 1234, 1236 (9th Cir. 1984). Thus, Plaintiffs’ claims for

relief must be dismissed unless no "plain, speedy, and efficient

remedy" is available in State court. The Supreme Court has

directed, however, that the inadequate State remedy exception

be narrowly construed, and that such a remedy is adequate if it

provides a mechanism for obtaining a refund even if declaratory

relief is not available. California v. Grace Brethren Church, 457

U.S. 393, 413 (1982).

California State law provides state court procedures for

corrections, cancellations, and refunds of illegal or

unconstitutionally assessed or collected taxes. Cal. Rev. & Tax.

Code §1401 et seq.

Plaintiff states that because he has already been before

the Franchise Tax Board and the Board of Equalization there is

no remedy at the state level. However, State law permits a

taxpayer to seek relief in the superior court in the county in

which property is located. Cal. Rev. & Tax. Code §4808.

Plaintiff has not sought relief in State court, and that remedy

is still available to him. In addition, questions regarding the

constitutionality of taxes may also be properly addressed to

State courts. In light of the foregoing, it is clear that Plaintiffs

B-4

have an adequate State court remedy, and their claims are

therefore barred by the Tax Injunction Act

IT IS SO ORDERED

DATED: 11/24/97 /s/_ Spencer Williams

SPENCER WILLIAMS

United States District Judge