Petition for Writ of Certiorari — Jenkins v. Commissioner of Internal Revenue (No. 06-1624)

?

No. 06- .

IN THE

Supreme Court of the United States

DANIEL TAYLOR JENKINS,

DD nese

Vv.

COMMISSIONER OF INTERNAL REVENUE SERVICE,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED States Court OF APPEALS

FOR THE SECOND CIRCUN

PETITION FOR A WRIT OF CERTIORARI

FREDERICK R. DETTMER

Law OFFICE OF

FREDERICK R. DETTMER

340 Corhes Avenue

Pelham, New York 10803

(914) 738-8782

Attorney for Petitioner

i

QUESTIONS PRESENTED

1. Is the Commissioner of Internal Revenue entitled to

a blanket exemption from the application of the Religious

Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C.

§ 2000bb, et seg., despite the absence of any such exemption

in the statute and this Court’s determination that blanket

exceptions to RFRA should be neither inferred nor accepted

on the basis of the government’s generalized invocation of a

need for uniformity in the administration of a federal

program?

2. Can Ninth Amendment rights “retained by the people”

be identified by examining liberties clearly existent at the

time of the adoption of the Constitution and the Bill of

Rights, as reflected in, for example, colonia! and early state

constitutions and legislation, so as to guarantee the right of

conscientious objection to compelled participation in warfare

that was well-established at the founding of this nation?

ii

TABLE OF CONTENTS

QUESTIONS PRE GING EE? ose c esses tencens

TABLE OF CURPRRRIOEE 5 Gs dade a Wat eeisannse

TABLE OF CITED AUTHORITIES ............

TABLE OF APPRINASE Sis ets cscs e sees eces

OPINION BEAAPW 45 4G5 kee Ww Ee Ni hasan asnase

JURISDICTIONAL STATEMENT ..............

CONSTITUTIONAL AND STATUTORY

PROVISIONS EN VUE Fire £08 ess cansescccess

STATEMENT OF TPR Gates Acca cecnnnnsene.

REASONS FOR GRANTING THE PETITION

I. REVIEW IS WARRANTED TO RESOLVE

IMPORTANT QUESTIONS RELATING

TO THE APPLICATION AND

CONSTRUCTION OF THE RELIGIOUS

FREEDOM RESTORATION ACT OF

Page

iV

iX

lil

Contents

Page

Il. REVIEW IS WARRANTED TO RESOLVE

IMPORTANT QUESTIONS RELATING TO

THE APPLICATION OF THE NINTH

AMENDMENT TO THE RIGHT OF

CONSCIENTIOUS OBJECTION IN

EXISTENCE AT THE TIME OF THE

FOUNDING OF THE UNITED STATES. .. 14

CONCLUSION

iv

TABLE OF CITED AUTHORITIES

Page

CASES

Adams v. Commissioner of Internal Revenue,

eee Lees 2h rere ery oe 8, 10

Bedroc Limited, LLC v. United States, 541 U.S. 176

EE by UGCh a et ee EAR A CENA RRERIA KOS 9

Browne v. United States, 176 F.3d 25 (2d Cir. 1999),

cert. denied, 528 U.S. 1116 (2000) ........... 8,10

City of Boerne v. Flores, 521 U.S. 507 (1997) ..... 11

Cutter v. Wilkinson, 544 U.S. 709 (2005) ......... 7

Employment Division v. Smith, 494 U.S. 872 (1990)

Aha alae KUM Ae ee ORE RES 10, 12

Gonzales v. O Centro Espirita Beneficente Uniao do

oo ae ee eer ree Sree 6,9

Griswold v. Connecticut, 381 U.S. 479 (1965) .... 14

Jefferson v. Lappin, 2006 U.S. App. LEXIS 31931

ST Sa Sa oo ok OKO RED a hae 10

Massachusetts v. Upton, 466 U.S. 727 (1984) ..... 15

Navajo Nation v. United States Forest Service,

S79 F358 1624 9" Cie. BOUT) wows os vn kveessss 1]

Cited Authorities

Page

Palmer v. Thompson, 403 U.S. 217 (1971) ....... 16

Planned Parenthood vy. Casey, 505 U.S. 833 (1992)

NSE cared Bae We ERLE RE RRA ee 15

Poe v. Ullman, 367 U.S. 497 (1961) ............ 15

Richmond Newspapers, Inc. V. Virginia, 448 U.S. 555

ey a yal gee Gere gate oe ihee en rar ay ape ta 16, 18

mie 4 Wee, 410 US. ATS AIST) ccna cca 15

Sherbert v. Verner, 374 U.S. 398 (1963) ......... 10

Spratt v. Rhode island Department of Corrections,

ae Pome a ee Ge BT Es 60h hes kes Does 1]

United States v. Lee, 455 U.S. 252 (1982) ... 8,9, 12, 13

United States v. Philadelphia Yearly Meeting of the

Religious Society of Friends, 322 F. Supp. 2d 603

Se: SE 2 sok ooh nck xk aS ewe eas 18

Whelan v. Roe, 429 U.S. 589 (1977) ............ 15

Wisconsin v. Yoder, 406 U.S. 205 (1972) ......... 10

vi

Cited Authorities

Page

FEDERAL CONSTITUTION,

STATUTES AND RULES

I, Gh ih bac che caw akee sc cuses 8

Co a ee ee eae eee passim

POUNUDOIID PUNCTURE nc cc cee ec eneans 15

NS a sk ek bk Se Rk RR 13

ere er ere re eet ee ree 4,13

ta) a eer eer ne rer 4

dik oe aie gare wy kee aw 9

4 eR eS rr ]

Religious Freedom Restoration Act of 1993,

a FO are rere are passim

Religious Land Use and Incarcerated Persons Act,

Re Wise. © SOUOOO, OF GOD, 6 oe cei 3, 5, 7

Pe iw ea hash eae kw ke 18

Act of Feb. 24, 1864, ch. 13, §. 17, 13 Stat.6,9 .... 18

vii

Cited Authorities

Page

STATE CONSTITUTIONS AND STATUTES

Constitution of State of New Hampshire of 1784 .. 17

Constitution of State of New York of 1777 ....... 17

Constitution of Commonwealth of Pennsylvania of

Lig METER TEPC POE EO ror e en te rr rere 17

Constitution of State of Vermont of 1777 ........ 17

INTERNATIONAL TREATIES AND AGREEMENTS

The American Declaration of the Rights and Duties

kg, PEE POE PLS eee Foe a lg cep Pen 19

The International Covenant on Civil and Political

oo etch chai wee eeee ee eek Re sacs 19

The Universal Declaration of Human Rights ...... 19

OTHER AUTHORITIES

Randy E. Barnett, Restoring the Lost Constitution

(Princeton Univ. Press 2004) ................ 16

Randy E. Barnett, The Ninth Amendment: It Means

What It Says, Boston University School of

Law Working Paper 05-14, August 24, 2005,

www. bu.edu/law/faculty/papers/Barnett

Pee CoE 3 i ies rs ee 16

vill

Cited Authorities

Page

Robert Bork , The Tempting of America:

The Political Seduction of the Law

eo 8g a, | |) a are 16

Russell L. Caplan, The History and Meaning

of the Ninth Amendment,

ee ye So | 17

INTERNATIONAL TRIBUNALS

Mr. Yeo-Bum Yoon and Mr. Myung-Jin Choi v.

Republic of Korea, CCPR/C/88/D1321-1322/

2004 of 3 January 2007 (UN Human Rights

Commission), http://www.unhchr.ch/tbs/doc.nsf/

(Symbol)/26a8e9722d0cdadac1257279004¢ 1 b4e?

EE ideas goisdae hdvaev axe en eh 20

ix

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States Court

Of Appeals For The Second Circuit Decided And

eB ge ee ee la

Appendix B — Order And Decision Of The United

States Tax Court Dated March 3, 2005 ........ lla

l

OPINION BELOW

The opinion of the United States Court of Appeals for the

Second Circuit is reported at Jenkins v. Commissioner of Internal

Revenue Service, 483 F.3d 90 (2™ Cir. 2007). The Second Circuit

affirmed the March 3, 2005 decision of the United States Tax

Court, which is not officially reported. See Appendix.

JURISDICTIONAL STATEMENT

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1)

The Second Circuit’s opinion was issued on March 6, 2007.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

UNITED STATES CONSTITUTION

FIRST AMENDMENT

Congress shall make no law respecting an

establishment of religion. or prohibiting the free

exercise thereof. . . .

UNITED STATES CONSTITUTION

NINTH AMENDMENT

The enumeration in the Constitution, of certain

ri: hts, shall not be construed to deny or disparage

others retained by the people.

2

Title 42 United States Code, Section 2000bb-1

Religious Freedom Restoration Act of 1993

§ 2000bb-1. Free exercise of religion protected

(a) In general. Government shall not substantially

burden a person’s exercise of religion even if the

burden results from a rule of general applicability,

except as provided in subsection (b).

(b) Exception. Government may substantially

burden a person’s exercise of religion only if it

demonstrates that application of the burden to the

person—

(1) is in furtherance of a compelling

governmental interest; and

(2) is the least restrictive means of furthering

that compelling governmental interest.

(c) Judicial relief. A person whose religious exercise

has been burdened in violation of this section may

assert that violation as a claim or defense in a judicial

proceeding and obtain appropriate relief against a

government. Standing to assert a claim or defense

under this section shall be governed by the general

rules of standing under article III of the Constitution.

3

Title 42 United States Code, Section 2000cc-5 (7)(A)

Religious Land Use and Incarcerated Persons Act

Definition of “Religious Exercise”

(7) Religious exercise.

(A) In general. The term “religious exercise”

includes any exercise of religion, whether or not

compelled by, or central to, a system of religious

belief.

STATEMENT OF THE CASE

1. This case involves a request that the Internal Revenue

Service accommodate petitioner Daniel Taylor Jenkins’s

religious conscientious objection to coerced participation in

warfare by allocating his federal income taxes to non-military

purposes.

Daniel Jenkins filed an accurate and timely 2001 income

tax return on April 14, 2002. He paid the self-employed social

security portion of his federal tax obligation and explained in a

letter addressed to the Commissioner that the remainder of the

taxes owed were being held in escrow pending direction on

how the funds could be directed to non-military government

expenditures.

Daniel Jenkins does not ask to be excused from paying any

part of his federal income taxes. He requests an

accommodation, not an exemption. He gave up dominion over

the disputed portion of his taxes by placing it in escrow at the

time of filing his tax return, and he advised the Commissioner

in writing that the funds were available for use for non-military

expenditures. This accommodation is consistent with the manner

4

in which the Internal Revenue Service segregates social security

tax payments and funds designated pursuant to the presidential

campaign finance check-off program under 26 U.S.C. § 6096,

as well as other special or specific purpose tax provisions. None

have caused undue administrative burden to the IRS.

Historically, accommodating Daniel Jenkins is comparable to

the way in which conscientious objector commutation taxes were

administered by the states when the militia system was in use

and by the federal government when it conscripted persons to

serve in the armed forces (during the Civil War).

Respondent Commissioner of Internal Revenue, the Tax

Court and the Second Circuit did not question the sincerity of

Daniel Jenkins’s religious belief, nor did they dispute that the

lack of governmental accommodation creates a substantial

burden on the exercise of his faith.

The Commissioner offered no evidence to demonstrate that

the refusal to accommodate Daniel Jenkins’s religious belief is

in furtherance of a compelling governmental interest, nor that

there are no less restrictive means of furthering any such interest.

Instead, the Commissioner, and the court below, resorted to a

categorical approach. They simply assumed that the government

is excused from showing that accommodation is not possible,

feasible or even practical on the basis of an irrebutable

presumption that there is no possible less restrictive means of

administering tax collections. (The Commissioner and the courts

below also mischaracterized the nature of Daniel Jenkins’s

request by asserting that he sought to “avoid” paying his taxes

and, hence, that he was seeking an exemption or entitlement

not to pay those taxes.)

2. The Tax Court had jurisdiction of the case pursuant to

26 U.S.C. § 6330(d), as petitioner had timely requested review

5

of an adverse determination of the Internal Revenue Service

Office of Appeals regarding the escrowed portion of his taxes

for the calendar year 2001.

REASONS FOR GRANTING THE PETITION

Whether the Commissioner of Internal Revenue is entitled

to a blanket exemption from the application of the Religious

Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C.

§ 2000bb, et seqg., presents an important question of federal law

that has not been, but should be, settled by this Court. The court

of appeals has decided this question in a way that is facially

inconsistent with the plain language of the statute and that

conflicts with this Court’s decisions explaining the scope and

effect of RFRA and the related Religious Land Use and

Incarcerated Persons Act, 42 U.S.C. § 2000cc-5, et seg. The

lower court’s interpretation of RFRA also conflicts with the

analysis and application of the statute by courts of other circuits.

The rejection by the court of appeals of petitioner’s

argument and evidence under the Ninth Amendment presents a

question of fundamental constitutional interpretation that has

not been, but should be, considered by this Court. There has

been little explication of the Ninth Amendment by this Court

or lower federal courts. Petitioner proposes an analytical

approach that is consistent with the language of the Amendment

and the original intent of the Founders, and that is narrow, clear

and capable of practical judicial application. Daniel Jenkins’s

protected liberty interest is demonstrated by the extensive history

of state constitutional and statutory guarantees of a right of

conscience against compelled military participation at the time

of the adoption of the Constitution and Bill of Rights.

6

I. REVIEW IS WARRANTED TO RESOLVE

IMPORTANT QUESTIONS RELATING TO THE

APPLICATION AND CONSTRUCTION OF THE

RELIGIOUS FREEDOM RESTORATION ACT OF

1993.

In Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418 (2006), the government argued that “it

has a compelling interest in the uniform application of the

Controlled Substances Act”, id. at 423 (emphasis in original),

which precludes any inquiry into whether accommodating the

requested religious exception for ceremonial use of a Schedule

I hallucinogen “would seriously compromise its ability to

administer the program.” Jd. at 435. This Court emphatically

rejected the government’s “categorical approach” and directed

that the government must establish on a case-by-case basis that

it cannot accommodate a request based on religious conscience:

RFRA, and the strict scrutiny test it adopted,

contemplate an inquiry more focused than the

Government’s categorical approach. RFRA requires

the Government to demonstrate that the compelling

interest test is satisfied through the application of

the challenged law “to the person” — the particular

claimant whose sincere exercise of religion is being

substantially burdened... . [W]e must searchingly

examine the interests that the State seeks to promote

... and the impediment to those objectives that

would flow from recognizing the claimed ...

exemption.

Id. at 430-431 (internal quotation marks omitted).

7

This Court rejected the suggestion that only Congress, and

not the federal courts, should engage in crafting exceptions to

federal laws of general application. /d. at 434 (““RFRA, however,

plainly contemplates that courts would recognize exceptions —

that is how the law works. See 42 U.S.C. § 2000bb-1(c).””). And

the Court soundly rejected the contention that generalized fears

about theoretical administrative burdens could justify refusing

to consider a specific request for accommodation:

Here the Government’s argument for uniformity . . .

rests not so much on the particular statutory program

at issue as on slippery-slope concerns that could be

invoked in response to any RFRA claim for an

exception to a generally applicable law. The

Government’s argument echoes the classic rejoinder

of bureaucrats throughout history: If I make an

exception for you, I’ll have to make one for

everybody, so no exceptions. But RFRA operates

by mandating consideration, under the compelling

interest test, of exceptions to “rules of general

applicability.” 42 U.S.C. § 2000bb-1(a). Congress

determined that the legislated test “is a workable

test for striking sensible balances between religious

liberty and competing prior governmental interests.”

§ 2000bb(a)(5).

Id. at 435-436,!

1. The Court has analogously directed that this type of searching

individualized adjudication is required under the similar language of

the Religious Land Use and Incarcerated Persons Act. Cutter v.

Wilkinson, 544 U.S. 709, 725 (2005) (Holding section 3 of the Religious

Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-

1({a)(1)-(2), to be constitutional and remanding for development of a

(Cont'd)

8

In this case, the court below disdained undertaking any

examination of “the application of the challenged law ‘to the

person’”’; or of any “interests that the State seeks to promote”;

or of any “impediment to those objectives that would flow from

recognizing” Daniel Jenkins’s request for accommodation. It

rejected that RFRA or this Court’s precedent require a fact-

specific, individualized inquiry on the basis of the conclusion

in prior decisions that “tax exemptions are a matter of legislative

grace....” Adams v. Commissioner of Internal Revenue, 170 F.3d

173, 180 (3d Cir. 1999), cert. denied, 528 U.S. 1117 (2000).

Daniel Jenkins attempted to focus the courts below on

specific evidence that accommodating his conscience would

not be unduly burdensome to the Internal Revenue Service. The

court of appeals summarily dismissed his arguments on the basis

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

no accommodation is required under the Free Exercise Clause

of the First Amendment. Relying on a prior decision of the

Second Circuit and one by the Third Circuit,’ which each in

(Cont'd)

factual record): “A finding that it is factually impossible to provide the

kind of accommodations that RLUIPA will require without significantly

compromising prison security or the levels of service provided to other

inmates cannot be made at this juncture.” (internal quotation marks

omitted; emphasis in original).

2. The decisions cited by the court below are Adams v.

Commissioner of Internal Revenue, 170 F.3d 173 (3d Cir. 1999), cert.

denied, 528 U.S. 1117 (2000), and Browne v. United States, 176 F.3d 25

(2d Cir. 1999), cert. denied, 528 U.S. 1116 (2000). In Adams, the Third

Circuit concluded that “the nature of the compelling interest involved —

as characterized by the Supreme Court in Lee — converts the least

restrictive means inquiry into a rhetorical question that has been

answered by the analysis in Lee.” 170 F.3d at 179. And in Browne, the

Second Circuit rejected the plaintiff's RFRA claim simply on the basis

of Adams. 176 F.3d at 26.

9

turn relied on United States v. Lee, the court below concluded it

is “well settled that RFRA does not afford a right to avoid

payment of taxes for religious reasons.” 483 F.2d at 92.

United States v. Lee involved a request by an Amish

employer for exemption from social security taxes for himself

and his employees. This Court noted that “any exemption from

payment of the employer’s share of social security taxes must

come from a constitutionally required exemption.” Id. at 256

(emphasis added). Daniel Jenkins’s petition, then, presents the

question whether the constitutional standard established in

United States v. Lee is conclusively determinative of statutory

analysis under RFRA. The Court has not directly addressed that

question.

The Second Circuit’s conclusion flies in the face of the

clear language of RFRA and its elucidation by this Court.

RFRA contains no exemption for tax laws. When Congress

wishes to exempt the tax system from the scope of other general

legislation, it knows how to do so. See, e.g., Anti-Injunction

Act, 26 U.S.C. § 7421(a) (“no suit for the purpose of restraining

the assessment or collection of any tax shall be maintained in

any court by any person. . . .”). It chose not to exempt the federal

tax system from accommodations required under RFRA.

Congress’s unambiguous legislative decision should be given

full effect by the courts. Bedroc Limited, LLC v. United States,

541 U.S. 176, 183 (2004).

This Court emphasized in O Centro Espirita that blanket

exceptions to RFRA should be neither inferred nor accepted on

3. Again, Daniel Jenkins does not seek to “avoid” payment of his

taxes. He seeks an accommodation that will permit him to pay his taxes

consistently with the dictates of his faith.

10

the basis of the government’s generalized invocation of a need

for uniformity in the administration of a federal program.

Certiorari should be granted to resolve whether, in the face of

the plain language of the statute and this Court’s

pronouncements, the tax system should be accorded a judicially-

created per se exemption from RFRA, as the Second Circuit

held.

Prior to the Court’s decision in Employment Division v.

Smith, 494 U.S. 872 (1990), requests for accommodation under

the Free Exercise Clause were sometimes subjected to a form

of individualized scrutiny elucidated in Sherbert v. Verner, 374

U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972).

Some Circuit Court decisions have indicated that Congress

intended in RFRA only to reinstate the so-called Sherbert- Yoder

test. E.g., Jefferson v. Lappin, 2006 U.S. App. LEXIS 31931

(DC Cir. 2006) (“the strict scrutiny standard set forth in the

RFRA in no way differs from the strict scrutiny test this and

other courts have long applied under the First Amendment.”);

Adams v. Commissioner of Internal Revenue, 170 F.3d 173, 180

(3d Cir. 1999), cert. denied, 528 U.S. 1117 (2000) (“the result

this court reaches in evaluating her particular [RFRA] challenge

is dictated by prior [Free Exercise Clause] case law.”’). This

case and the other perfunctory decisions of the Second and Third

Circuits refusing to apply the individualized strict scrutiny

mandated by RFRA’s plain language to cases involving federal

tax administration fall into this category. Jenkins v.

Commissioner of Internal Revenue Service, 483 F.3d 90

(2™ Cir. 2007); Adams v. Commissioner of Internal Revenue,

170 F.3d 173 (3d Cir. 1999), cert. denied, 528 U.S. 1117 (2000);

Browne v. United States, 176 F.3d 25 (2d Cir. 1999), cert. denied,

528 U.S. 1116 (2000).

1]

This Court, however, has determined that RFRA does not

simply incorporate the individualized scrutiny standards of

Sherbert and Yoder. Rather, “the Act imposes in every case a

least restrictive means requirement — a requirement that was

not used in the pre-Smith jurisprudence RFRA purported to

codify. .. .” City of Boerne v. Flores, 521 U.S. 507, 535 (1997).

Other Circuit Courts also have held that RFRA provides

greater protection for religious conscience than required by this

Court’s pre-Smith constitutional free exercise decisions. Those

courts have noted, among other differences, that the First

Amendment forbids “prohibiting” the free exercise of religion,

while RFRA forbids “burdening” religion; that the “least

restrictive means” requirement uniformly imposed by RFRA

was not part of the pre-Smith jurisprudence; that RFRA applies

to all cases, while pre-Smith constitutional analysis had

exempted some entire classes of governmental activity from

the Sherbert- Yoder test’s heightened scrutiny; and that RFRA

employed a broader definition of “exercise of religion” after

amendment in 2000 than had been utilized in this Court’s

interpretation of the Free Exercise Clause. E.g., Navajo Nation

v. United States Forest Service, 479 F.3d 1024, 1032-1033

(9" Cir. 2007); Spratt v. Rhode island Department of

Corrections, 482 F.3d 33, 41 n. 12 (1* Cir. 2007) (Interpreting

RLUIPA).

Daniel Jenkins’s petition should be granted so that the Court

can resolve the conflict between this Court’s determination and

the Second Circuit’s understanding of RFRA, as well as the

conflict among the Circuits.

12

Moreover, in Employment Division v. Smith, the Court

explained that

[t]he only decisions in which we have held that the

First Amendment bars application of a neutral,

generally applicable law to religiously motivated

action have involved not the Free Exercise Clause

alone, but the Free Exercise Clause in conjunction

with other constitutional protections, such as

freedom of speech and of the press . . . or the right

of parents . . . to direct the education of their children.

494 U.S. at 881. In other words, to the extent that RFRA

incorporates standards of individualized scrutiny from Sherbert

and Yoder, those standards were not even applicable in United

States v. Lee.

The most that can be said of United States v. Lee and the

other decisions cited by the court below is that accommodations

of religious conscience that affect tax administration are not

constitutionally required by the Free Exercise Clause of the First

Amendment. RFRA does not apply a “constitutionally required”

standard, though, and applications of RFRA to particular statutes

and persons do not raise concerns that animate constitutional

jurisprudence. Cf Employment Division v. Smith, supra, 494

U.S. at 888-890 (“But to say that a nondiscriminatory religious-

practice exemption is permitted, or even that it is desirable, is

not to say that it is constitutionally required. . . .”).

In short, United States v. Lee reached a constitutional

conclusion that the free exercise of religion protected by the

First Amendment did not compel the government to

accommodate taxpayers because (1) the First Amendment did

13

not require accommodations to federal statutes of general

application, and (2) the Court believed that “[t]he tax system

could not function if denominations were allowed to challenge

the tax system because tax payments were spent in a manner

that violates their religious belief.” Jd. at 260. Those

considerations no longer hold. RFRA does not involve

constitutional analysis, and its standards for refusing to

accommodate religious exercise are more demanding than those

applied in United States v. Lee and its progeny. Congress has

shown by its subsequent acts, such as expanding the exemption

of the Amish from social security taxes in response to Lee*and

the presidential campaign finance check-off program,’ that

exceptions to the uniform application of the Internal Revenue

Code based on sincere religious conscience do not necessarily

undermine the tax system. RFRA entails consideration of

accommodating the religious conscience of individuals, while

Lee was concerned with exempting denominations. And this

Court has made it clear that Congress’s direction to the Federal

Courts to adjudicate requests for accommodation on a case-by-

case basis under the standards set forth in RFRA should be fully

honored for ai// federal statutes.

RFRA provides a means for harmonizing an individual’s

relationship to government and to God. Congress concluded

that the federal government should actively adopt

accommodations that permit the individual to be both loyal to

4. After the Lee decision, Congress expanded the social security

tax exemption to include Amish employers, like Mr. Lee, and their

employees without any apparent damage to the federal tax system.

Technical and Miscellaneous Revenue Act of 1988, Public Law 100-

647, Section 8007 (1988), adding Section 3127 of the Internal Revenue

Code, 26 U.S.C. § 3127.

5. 26 U.S.C. § 6096.

14

his country and faithful to his God. The categorical judicial

exemption of the tax system from this statutory duty undermines

the legislature’s intent. It denigrates RFRA’s specific directive

to minimize the extent to which a person will be forced to choose

between obedience to his government and obedience to his faith.

For all these reasons, the petition should be granted so that

the Court can determine the applicability of RFRA to tax issues,

and resolve a conflict between the Circuit Courts.

II. REVIEW IS WARRANTED TO RESOLVE

IMPORTANT QUESTIONS RELATING TO THE

APPLICATION OF THE NINTH AMENDMENT TO

THE RIGHT OF CONSCIENTIOUS OBJECTION IN

EXISTENCE AT THE TIME OF THE FOUNDING OF

THE UNITED STATES.

Below, Daniel Jenkins sought to present an argument that

conscientious objection to participation in warfare was a liberty

right recognized in colonial constitutions and statutes and,

accordingly, within the intended scope of the Ninth

Amendment’s reservation of “rights retained by the people.”

Ninth Amendment jurisprudence is not well developed. This

Court has acknowledged that the Amendment has meaning and

vitality’ and that persons possess liberty rights beyond those

6. E.g., Griswold v. Connecticut, 381 U.S. 479, 488, 491 (1965)

(Goldberg, J., concurring):

The language and history of the Ninth Amendment reveal

that the Framers of the Constitution believed that there are

additional fundamental rights, protected from government

infringement, which exist alongside those fundamental

(Cont'd)

15

specifically mentioned in the United States Constitution and

amendments,’ while also seeking to locate unenumerated rights

in the text of other Amendments.* Members of the Court have

explored the Founders’s intention in including the Ninth

Amendment and its possible application in particular situations,’

(Cont'd)

rights specifically mentioned in the first eight constitutional

amendments.... To hold that a right so basic and

fundamental and so deeply rooted in our society ... may

be infringed because that right is not guaranteed in so many

words by the first eight amendments to the Constitution is

to ignore the Ninth Amendment and to give it no effect

whatsoever.

7. E.g., Planned Parenthood v. Casey, 505 U.S. 833, 848 (1992)

(“Neither the Bill of Rights nor the specific practices of states at the

time of the adoption of the 14" Amendment marks the outer limits of

the substantive sphere of liberty which the 14" Amendment protects.

See U.S. Const., Amdt. 9.”); Poe v. Ullman, 367 U.S. 497, 541, 543

(1961) (Harlan, J., dissenting)

8. E.g., Roe v. Wade, 410 U.S. 113, 153 (1973):

This right of privacy, whether it be founded in the

Fourteenth Amendment’s concept of personal liberty and

restrictions upon state action, as we feel it is, or, as the

District Court determined, in the Ninth Amendment’s

reservation of rights to the people, is broad enough to

encompass a woman’s decision whether or not to terminate

her pregnancy.

See also Whelan v. Roe, 429 U.S. 589, 600 (1977).

9. E.g., Massachusetts v. Upton, 466 U.S. 727, 737 (1984)

(Stevens, J., dissenting) (“The Ninth Amendment, it has been said, states

but a truism. But that truism goes to the very core of the constitutional

(Cont'd)

16

but this Court as a whole has never had reason tu develop

workable standards for determining the types of unenumerated

liberties it protects.

Ninth Amendment scholars propose giving content to its

promise to preserve unenumerated rights by looking to this

country’s history and tradition. For example, in The Tempting

of America: The Political Seduction of the Law (The Free Press

1990), Robert Bork observes that

[t]he Ninth Amendment appears to serve a parallel

function [to the Tenth Amendment’s guarantee of

federalism] by guaranteeing that the rights of the

people specified already in the state constitutions

were not cast in doubt by the fact that only a limited

set of rights was guaranteed by the federal charter.

Id. at 185 (emphasis added). Others also have argued that

retained rights can be identified by examining liberties clearly

existent at the time of the adoption of the Constitution and the

Bill of Rights, as reflected in, for example, colonial and early

state constitutions and legislation.'®

(Cont'd)

relationship between the individual and governmental authority, and,

indeed, between sovereigns exercising authority over the individual.”);

Richmond Newspapers v. Virginia, 448 U.S. 555, 579 & n. 15 (1980)

(opinion of Burger, CJ); Palmer v. Thompson, 403 U.S. 217, 233 (1971)

(Douglas, J., dissenting) (“The ‘rights’ retained by the people within

the meaning of the Ninth Amendment may be related to those ‘rights’

which are enumerated in the Constitution.”).

10. See, e.g., Randy E. Barnett, Restoring the Lost Constitution

(Princeton Univ. Press 2004); Randy E. Barnett, The Ninth Amendment:

It Means What It Says, Boston University School of Law Working

(Cont'd)

17

In accordance with this approach, Daniel Jenkins seeks to

offer evidence that the individual right of religious conscience

not to be compelled to participate in or support military activity

was well recognized at the founding of this nation. For example,

the New York State Constitution of 1777, which predates and

is independent of the United States Constitution and the Bill of

Rights, expressly protects persons with “scruples of conscience”

from forced military service and requisition for armament.'' The

constitutions of other colonial states also contain liberty of

conscience guarantees and religious exemptions from the

“bearing of arms”."? This constitutional right of conscientious

objection was preserved by the states at least until the formation

(Cont'd)

Paper 05-14, August 24, 2005, www.bu.edu/law/faculty/papers/

BarnettR08240Sabstract.html; Russell L. Caplan, The History and

Meaning of the Ninth Amendment, 69 Va. L. Rev. 223, 259 (1983).

11. New York State Constitution of 1777, Article XL; in Charles

Z. Lincoln, The Constitutional History of New York (Lawyers Co-Op.

Publ. Co. 1906), Vol. 1, at 186; available at: Attp:/Awww.yale.edu/lawweb/

avalon/states/ny01.htm. Article XL states:

That all such of the inhabitants of this state (being of the

people called Quakers) as, from scruples of conscience,

may be averse to the bearing of arms, be therefrom excused

by the legislature, and do pay to the state such sums of

money, in lieu of their personal service, as the same may,

in the judgment of the legislature, be worth.

12. See, for example, Constitution of the Commonwealth of

Pennsylvania of 1776, Art. 2 & 8, Attp://www.yale.edu/lawweb/avalon/

states/pa08. him; Constitution of the State of Vermont of 1777, Art. 3 &

9, http://www. yale.edu/lawweb/avalon/states/t01.htm; Constitution of

the State of New Hampshire of 1784, Art. 4, 5 & 13, Attp://nh.gov/

constitution/billofrights.himl.

18

of the first permanent national army. It was also preserved and

protected by the actions of the early Congress'* and by the Civil

War Congress that instituted the first federal universal military

service draft.’

Accordingly, there is a substantial basis to conclude that a

right of conscience not to be compelled to participate in warfare

was “retained by the people” from before the founding of the

federal government. The Ninth Amendment was intended to

respond to concerns that the enumeration of specific rights in

the first eight amendments could be interpreted to negate the

existence and continuing vitality of other, unstated liberties.

See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

579 (1980) (opinion of Burger, C.J.). It would be ironic indeed

13. On May 8, 1792, Congress passed “An Act more effectually

to provide for the National Defense by establishing a Uniform Militia

throughout the United States.” Act of May 8, 1792, § 1, 2™ Cong., 1"

Sess., Ch. 33; in Richard Peters, ed., The Public Statutes at Large of the

United States of America from the Organization of the Government in

1789 to March 3, 1845 (Little & Brown 1845), Vol. 1, at 271-272. This

is the first national legisiation enacted concerning military service. It

included an exemption for “all persons who now are or may hereafter

be exempted by the laws of the respective states... .”

14. In March 1863 and February 1864, Congress adopted acts

exempting from service “members of religious denominations, who shall

by oath or affirmation declare that they are conscientiously opposed to

the bearing of arms, and who are prohibited from doing so by the rules

and articles of faith and practice of said religious denominations. . .”

and providing that the commutation fee to be paid for exemption from

military service was “to be applied to the benefit of the sick and wounded

soldiers.” Act of Feb. 24, 1864, ch. 13, § 17, 13 Stat. 6, 9. See United

States v. Philadelphia Yearly Meeting of the Religious Society of Friends,

322 F. Supp. 2d 603, 605 (ED Pa. 2004).

19

if the lack of a standard for identifying and delimiting these

retained rights becomes the justification to deny their existence.

Liberty of conscience was a preeminent, perhaps the

paramount, factor motivating the earliest settlers to leave their

homelands and to venture across a foreboding ocean to make

new lives on this continent. That preeminence poured into the

founding governing documents of the colonies, the states and

the nation. Its enduring legacy has attracted people to our shores

for over two hundred years and made this country the

international model of liberty.

In no small part due to the example of this nation and its

people’s leadership, freedom of religious conscience has become

an established fundamental universal human right. The American

Declaration of the Rights and Duties of Man was adopted by

the Organization of American States (OAS) at Bogota, Columbia

by the Ninth International Conference of American States in

April 1948. It declares in Article III that “[e]very person has the

right freely to profess a religious faith, and to manifest and

practice it both in public and in private” and in Article XVIII

promises every person access to the courts to ensure respect for

this right. The Universal Declaration of Human Rights was

adopted by the United Nations General Assembly in December

1948. It declares that “[e]veryone has the right to freedom of

thought, conscience and religion. . .” and directs that these rights

be effectively protected by national tribunals. UDHR, Articles

18 & 8. The International Covenant on Civil and Political Rights

was concluded in New York in 1966, and was signed by the

United States in 1977 and ratified by the Senate in 1992. It too

guarantees that “[e]veryone has the right to freedom of thought,

conscience and religion. . .” and endorsing nations agreed to

provide effective judicial remedies to protect these rights.

ICCPR, Articles 18 & 2. And on January 23, 2007, the United

20

Nations Human Rights Committee sustained the claims of South

Korean Jehovah’s Witnesses under article 5, paragraph 4 of the

Optional Protocol to the International Covenant on Civil and

Political Rights that the refusal of South Korea to accommodate

their conscientious objection to participation in the military

was a violation of the guarantees of conscience and religion in

Article 18.'° The international recognition of rights of conscience

further confirms that conscientious objection to coerced

participation in warfare is a right properly understood as reserved

to the people by the Ninth Amendment.

For all these reasons, this Court should grant the petition

to resolve important questions regarding the interpretation and

application of the Ninth Amendment.

CONCLUSION

For the foregoing reasons, petitioner Daniel Taylor Jenkins

respectfully requests that the Supreme Court grant review of

this matter.

Respectfully submitted,

FREDERICK R. DETTMER

Law OFFICE OF

FREDERICK R. DETTMER

340 Corlies Avenue

Pelham, New York 10803

(914) 738-8782

Attorney for Petitioner

15. Mr. Yeo-Bum Yoon and Mr. Myung-Jin Choi v. Republic of

Korea, CCPR/C/88/D1321-1322/2004 of 3 January 2007 (UN Human

Rights Commission), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/

26a8e9722d0cdadac 1 257279004c1b4e?Opendocument.

APPENDIX

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

DECIDED AND FILED MARCH 6, 2007

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2006

(Argued: February 22, 2007 Decided: March 6, 2007)

Docket No. 05-4756-ag

DANIEL TAYLOR JENKINS,

Petitioner-Appellant,

V.

COMMISSIONER OF INTERNAL REVENUE SERVICE,

Respondent-Appellee.

Before KEARSE, CABRANES, and KATZMANN, Circuit

Judges.

JOSE A. CABRANES, Circuit Judge.

We consider here the claim that religious objections to

military activities or spending may form the basis for

avoiding the payment of federal taxes. The claim is not new, '

although it is presented in somewhat unusual garb.

1. See, e.g., United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051,

71 L.Ed.2d 127 (1982) (holding that the First Amendment does not

afford members of the Amish sect a right to avoid payment of social

(Cont'd)

2a

Appendix A

Petitioner Daniel Taylor Jenkins, a religious objector to

military spending, appeals a decision of the United States

Tax Court granting respondent Commissioner of Internal

Revenue’s motion for summary judgment under Rule 121 of

the United States Tax Court Rules of Practice and Procedure.’

The Tax Court dismissed petitioner’s amended petition, in

which he claimed that the First and Ninth Amendments of

the United States Constitution’ afford him a right to retain

(Cont'd)

security taxes); Browne v. United States, 176 F.3d 25 (2d Cir.1999)

(holding that taxpayers cannot withhold the portion of their taxes which

they calculate will be allocated for military purposes); Adams v. Comm’r,

170 F.3d 173 (3d Cir.1999) (holding that the government need not

accommodate taxpayers whose religious beliefs lead them to oppose

military funding); United States v. Ramsey, 992 F.2d 831, 833 (8th

Cir.1993) (holding that the First Amendment does not afford a right to

avoid federal income taxes on religious grounds); Jenney v. United

States, 755 F.2d 1384 (9th Cir.1985) (holding that taxpayers cannot

withhold taxes based on conscientious objection to war); Lull v. Comm ’r,

602 F.2d 1166, 1169 (4th Cir.1979) (same).

2. Tax Court Rule 121 provides in pertinent part,

A decision shall . . . be rendered [upon motion for summary

judgment] if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials

... Show that there is no genuine issue as to any material

fact and that a decision may be rendered as a matter of

law.

Tax Ct. R. 121(b).

3. The First Amendment states, in relevant part, that “Congress

shall make no law respecting an establishment of religion, or prohibiting

(Cont’d)

3a

Appendix A

the unpaid portion of his taxes on the basis of religious

objections to military spending until such taxes can

be directed to nonmilitary expenditures. The Tax Court

also imposed a penalty of $5,000 pursuant to 26 U.S.C.

§ 6673(a)(1) based on its conclusion that petitioner’s

arguments were frivolous within the meaning of the statute.‘

On appeal, petitioner argues that the Tax Court erred in

(1) dismissing his claim that the First and Ninth Amendments

afford him a right to withhold a portion of his taxes on

account of his religious objections to military expenditures;

(2) failing to determine whether accommodating his religious

objections would be unduly burdensome under the Religious

Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C.

(Cont'd)

the free exercise thereof.” U.S. Const. amend. I. The Ninth Amendment

states that “[t}he enumeration in the Constitution, of certain rights, shall

not be construed to deny or disparage others retained by the people.”

U.S. Const. amend. IX.

4. 26 U.S.C. § 6673(a)(1) provides,

Whenever it appears to the Tax Court that—

(A) proceeding before it have been instituted or

maintained by the taxpayer primarily for delay,

(B) the taxpayer’s position in such proceeding is

frivolous or groundless, or

(C) the taxpayer unreasonably failed to pursue available

administrative remedies,

the Tax Court, in its decision, may require the taxpayer to pay to the

United States a penalty not in excess of $25,000.

4a

Appendix A

§§ 2000bb ef seq.; and (3) assessing a penalty for raising

frivolous claims pursuant to 26 U.S.C. § 6673.

Although we do not doubt the sincerity of petitioner’s

religious convictions, we conclude that his legal arguments

are without merit. It is well settled that the collection of tax

revenues for expenditures that offend the religious beliefs

of individual taxpayers does not violate the Free Exercise

Clause of the First Amendment. See United States v.

Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982)

(holding that Amish taxpayers cannot avoid payment of social

security taxes under the First Amendment based on religious

objections to participation in the social security system);

Browne y. United States, 176 F.3d 25 (2d Cir.1999) (holding

that the First Amendment does not afford a right to withhold

the portion of an individual’s tax liability that would be

allocated to the Department of Defense).

It is similarly well settled that RFRA does not afford a

right to avoid payment of taxes for religious reasons. Browne,

176 F.3d at 26 (rejecting RFRA claim on the ground that

“voluntary compliance is the least restrictive means by which

the IRS furthers the compelling governmental interest in

uniform, mandatory participation in the federal income tax

system”); see also Adams v. Comm ’r, 170 F.3d 173, 176 (3d

Cir.1999) (same). Therefore, we need not discuss in detail

the arguments to the contrary that are raised in petitioner’s

brief.°

5. We merely note our disagreement with petitioner’s assertion

that the Supreme Court’s recent decision in Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211,

(Cont'd)

Sa

Appendix A

We conclude that petitioner’s Ninth Amendment claim

is also without merit. The Ninth Amendment provides that

“(t]he enumeration in the Constitution, of certain rights, shall

not be construed to deny or disparage others retained by the

people.” U.S. Const. amend. IX. The Ninth Amendment is

not an independent source of individual rights; rather, it

provides a “rule of construction” that we apply in certain

cases. See United States v. Bifield, 702 F.2d 342, 349 (2d

Cir.1983). The rule dictates that the “[t]he full scope of the

specific guarantees [in the Constitution] is not limited by

the text, but embraces their purpose.” Jd.

Petitioner argues that the Ninth Amendment supports his

asserted right to withhold payment of taxes that would be

used for military spending. He relies on, inter alia, various

eighteenth and nineteenth century provisions in the laws and

(Cont'd)

163 L.Ed.2d 1017 (2006) breathes new life into his otherwise

unsuccessful argument under the Religious Freedom Restoration Act

of 1993. In O Centro Espirita the Court held that the government

had not demonstrated a compelling interest in the uniform application

of the Controlled Substances Act to prohibit religious uses of an

otherwise illegal drug. 126 S.Ct. at 1225. Although the Court in

O Centro Espirita rejected the government’s “categorical approach”

to assessing the relevant religious burdens, it explicitly contrasted

the claims at issue in O Centro Espirita with unsuccessful

constitutional claims brought by taxpayers seeking to withhold taxes

on religious grounds. See id. at 1223 (noting that Lee and other cases

rejecting efforts to withhold payment of taxes “show that the

Government can demonstrate a compelling interest in uniform

application of a particular program by offering evidence that granting

the requested religious accommodations would seriously compromise

its ability to administer the program”) (emphasis added).

6a

Appendix A

the Constitution of the State of New York,° and several acts

of the United States Congress,’ which accommodated

religious observers who objected to military service, or

exempted religious objectors from paying taxes that would

be used for military expenditures. See Petitioner’s Br. 16-

22. Petitioner argues on the basis of these provisions that

“the right of conscience not to be compelled to participate in

war making” was “an element of religious freedom at the

time of the adoption of the United States Constitution and

the Bill of Rights.” Jd. at 14-15. He therefore argues that the

Tax Court erred when it failed to consider whether a right to

withhold the portion of his taxes allocable for military

spending “could be discerned in the First Amendment’s

prohibition of abridging the free exercise of one’s faith as

elucidated by the Ninth Amendment's ‘rule of construction,”

id. at 14 (emphasis added).

Petitioner’s Ninth Amendment argument fails because

it amounts to a mere recasting of his unsuccessful First

Amendment claim. His argument that the right to withhold

the payment of taxes was an element of “religious freedom

at the time of the adoption of the United States Constitution”

is rooted in petitioner’s historical interpretation of the

principles embodied by the Free Exercise Clause. The

argument is squarely foreclosed, however, by the Supreme

6. See, e.g. Act of Apr. 15, 1814, ch. 200, Art. XXIII, 1814

N.Y. Laws 251, 253 (providing that money received from Quakers

would not be used to support the state militia but would instead be

allocated for educational and charitable purposes).

7. See, e.g., Act of May 8, 1792, ch. 33, § 2, 1 Stat. 271, 272

(requiring enrollment in federal militia but exempting all persons

subject to exemptions under state law).

7a

Appendix A

Court’s decision in United States v. Lee. In Lee, the Court

considered claims by a member of the Amish faith that the

assessment of social security taxes interfered with the right

to practice his religion as guaranteed by the Free Exercise

Clause. 455 U.S. at 255-57, 102 S.Ct. 1051. The Court

rejected the petitioner’s arguments, concluding that

“{b]ecause the broad public interest in maintaining a sound

tax system is of such a high order, religious belief in conflict

with the payment of taxes affords no basis for resisting the

tax.” Jd. at 260, 102 S.Ct. 1051 (emphasis added). Indeed,

the Court in Lee noted, albeit in dicta, that the Constitution

similarly would not afford a right for religious adherents to

withhold the portion of their taxes corresponding to the

percentage of the federal budget allocated for “war-related

activities.” Id.

The sincere religious beliefs of the petitioner in the case

before us similarly “afford[ | no basis for resisting” payment

of his taxes where, as here, the “broad public interest in

maintaining a sound tax system” is not meaningfully

disputed, id., and where Congress’s constitutional authority

to impose the taxes in question is beyond doubt. See United

Public Workers v. Mitchell, 330 U.S. 75, 96, 67 S.Ct. 556,

91 L.Ed. 754 (1947) (“[W]hen objection is made that the

exercise of a federal power infringes upon rights reserved

by the Ninth and Tenth Amendments, the inquiry must be

directed toward the granted power under which the action of

the Union was taken. If granted power is found, necessarily

the objection of invasion of those rights, reserved by the

Ninth and Tenth Amendments, must fail.”); see also Barton

v. Comm’r, 737 F.2d 822, 823 (9th Cir.1984) (rejecting

taxpayer’s claim that the Ninth Amendment afforded him

8a

Appendix A

the right to withhold taxes allocable for military purposes

because, inter alia, “Article I, section eight of the

Constitution specifically grants Congress the power to collect

taxes ... for the national defense”).

We agree with the Ninth Circuit’s decision in Barton,

which held, in a case substantially similar to the one at bar,

that the Ninth Amendment did not support an individual’s

efforts to avoid payment of taxes based on his genuinely held

religious objections to military expenditures. See id. at 823-

24 (“If the specific protections of the first amendment do

not afford a basis for refusing to pay tax, then neither can

the more nove! claims raised by appellant under the ninth

amendment.”). We hold that petitioner cannot bolster or

enhance an unavailing First Amendment argument merely

by presenting it in the dress of a Ninth Amendment claim.

Finally, we address petitioner’s argument that the Tax

Court abused its discretion by assessing a penalty of $5,000

pursuant to 26 U.S.C. § 6673(a)(1), see note 4, ante.

We conclude that no abuse of discretion occurred here. For

the reasons stated in our discussion above, any reasonable

possibility of petitioner’s success on the merits was squarely

foreclosed by long-settled case law. Accordingly, the Tax

Court properly concluded that petitioner’s claims were

“frivolous” or “groundless” within the meaning of the statute.

26 U.S.C. § 6673(a)(1); see Burke v. Comm ’r, 929 F.2d 110,

116 (2d Cir.1991) (affirming imposition of penalties on

taxpayer who argued, inter alia, that the Tax Court was

unconstitutional).

9a

Appendix A

Even assuming that petitioner’s one arguably novel

claim-namely, his Ninth Amendment argument-was not

explicitly and unambiguously foreclosed by existing Second

Circuit precedent, we nevertheless find that the Tax Court

did not abuse its discretion in assessing the penalty.

First, we agree with the Tax Court’s conclusion that, despite

taking a slightly new form, petitioner’s argument was

“representative of a class of arguments that have universally

been rejected by [the Tax Court] and other courts.” Jenkins

v. Comm 'r, No. 20217-03L (Tax Ct. March 3, 2005). Second,

the Tax Court’s decision to assess a penalty is supported by

the fact that petitioner previously raised a similar

unsuccessful challenge in Tax Court, in which he argued that

the First Amendment afforded him a right to avoid paying

taxes allocable for military expenditures. In rejecting his

arguments on this previous occasion, the Tax Court explicitly

noted that “[i]t is a fundamental principle of tax law that a

taxpayer has no right to reduce his Federal tax liability on

the ground that governmental policies or expenditures

conflict with his religious or moral convictions, no matter

how sincerely those convictions may be held.” Jenkins v.

Comm ’r, No. 4251-878 (Tax Ct. Dec. 28, 1987). Petitioner

therefore received full and adequate notice during the prior

action that any future efforts to resist payment of taxes would

almost certainly fail. Cf Maduakolam v. Columbia Univ.,

866 F.2d 53, 56 (2d Cir.1989) (reversing the District Court’s

imposition of sanctions under Fed.R.Civ.P. 11 because there

was “ nothing in the record to indicate that [the appellant]

knew or should have known that his motion to reopen case

was time-barred” (emphasis added) (internal quotation marks

omitted)). Accordingly, the Tax Court did not abuse its

discretion when imposing a penalty in the instant case.

10a

Appendix A

Cf. Burke, 929 F.2d at 116 (affirming imposition of a penalty

by the Tax Court and noting that “we have recently ruled

that sanctions can be imposed pursuant to Fed. R.App. P. 38

where, even if one issue is deemed valid, the bulk of

[appellant’s] claims are completely devoid of merit” (internal

quotation marks omitted)).

. &- a2 -@

For the reasons stated above, the decision of the Tax

Court is AFFIRMED.

lla

APPENDIX B — ORDER AND DECISION OF THE

UNITED STATES TAX COURT DATED MARCH 3, 2005

UNITED STATES TAX COURT

Washington, DC 20217

Docket No. 20217-03L.

DANIEL TAYLOR JENKINS,

Petitioner,

V.

COMMISSIONER OF INTERNAL REVENUE,

Respondent.

ORDER AND DECISION

Respondent has moved for summary judgment and for

imposition of a penalty under section 6673' (the motion).

Petitioner objects. For the reasons that follow, we shall grant

the motion for summary judgment and enter decision for

respondent. We shall also impose a penalty against petitioner

under section 6673 in the amount of $5,000.

This case is before the Court to review a determination

(the determination) made by respondent’s Appeals Office

(Appeals) that respondent may proceed to collect by levy

1. Unless otherwise indicated, all section references are to the

Internal Revenue Code of 1986, as amended, and all rule references

are to the Tax Court Rules of Practice and Procedure.

12a

Appendix B

the unpaid portion of the income tax petitioner reported on

his calendar year 2001. Federal income tax return (the unpaid

tax) together with interest and certain statutory additions to

the tax. We review the determination pursuant to section

6330(d)(1). Petitioner claims that Appeals erred in refusing

to allow him to follow his conscience and refrain from paying

the unpaid tax until such time as he may direct that the tax

be used to fund only non-military expenditures. Respondent

moves for summary judgment in his favor on the ground that

petitioner has no right to rely on his own conscience as a

basis for not paying tax. Respondent argues that there is no

genuine issue of material fact for trial and that a decision

may be rendered as a matter of law.

Rule 121 provides for summary judgment. Summary

judgment may be granted with respect to all or any part of

the legal issues in controversy “if the pleadings, answers to

interrogatories, depositions, admissions, and any other

acceptable materials, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

a decision may be rendered as a matter of law.” Rule 121(a)

and (b). When a motion for summary judgment is made and

properly supported, the adverse party may not rest on mere

allegations or denials of the pleadings but must set forth

specific facts showing that there is a genuine issue for trial.

Rule 121(d).

We are satisfied that there is no genuine issue as to any

material fact and that a decision may be rendered as a matter

of law. For the reasons that follow, we shall grant the motion.

l3a

Appendix B

Background

We draw the following facts from the pleadings, the

Declaration of Bruce E. Conte, a settlement officer employed

by respondent, in support of respondent’s motion (the Conte

Declaration) and the exhibits thereto, and “Petitioner’s

Response in Opposition to Respondent’s Motion” (the

response). We believe the following facts to be undisputed

and so find for purposes of this order and decision.

Petitioner timely filed his 2001 Federal income tax

return, reporting a tax due of $4,118.58, but enclosing only

a payment in the amount of $1,842.58. A letter attached to

the return states that the balance, $2,276.00, had been “put

in escrow pending the opportunity to direct tax dollars

entirely to non-military government expenditures.”

On May 16, 2003 after respondent notified petitioner of

his obligation to pay the balance due, penalties, and interest,

respondent sent petitioner a Final Notice of Intent to Levy

and Notice of Your Right to a Hearing. In response, on June

12, 2003, petitioner timely submitted to Appeals a Request

for Collection Due Process Hearing (the request). The request

stated only that “|t]he original $2276.00 was escrowed and

available since mid-April of 2002.”

A telephonic collection due process hearing was held on

October 8, 2003 (the hearing). At the hearing, petitioner

raised two issues: (1) that the proposed levy would exceed

the amount listed in Publication 1494 and (2) that petitioner

desired the ability to direct the taxes he pays entirely to non-

military government expenditures. As to the first issue, the

14a

Appendix B

settlement officer conducting the hearing for Appeals (the

settlement officer) explained that Publication 1494 pertains

only to levies on wages, salary, and other income and

therefore did not limit respondent’s ability to levy on other

property. The settlement officer also advised petitioner that

failure or refusal to comply with tax laws, even if such failure

or refusal is based on moral, religious, political, or similar

grounds, could not justify forestalling or averting the

proposed levy action. Additionally, petitioner and the

settlement officer discussed the fact that penalties might be

assessed against petitioner if his position were deemed

frivolous or groundless. Petitioner did not challenge the

amount or existence of underlying liability he reported on

his return. No further issues were raised, nor were any

alternative collection actions suggested. The hearing ended

with the settlement officer disclosing to petitioner that the

proposed levy action would likely be upheld, and petitioner

stated that he understood.

On October 23, 2003, Appeals made the determination,

sustaining the proposed levy action. Attached to the

determination is an explanation of Appeals’ action, which,

among other things, sets forth relevant facts, confirms that

Appeals verified that the requirements of applicable law and

administrative procedures had been met, addresses the issues

raised by petitioner, and concludes that the proposed

collection action balances the need for efficient coilection

of taxes with the legitimate concern of the taxpayer that any

collection action be no more intrusive than necessary.

15a

Appendix B

Discussion

I. Collection Due Process

If any person liable for Federal tax liability neglects or

refuses to make payment within 10 days of notice and

demand, the Commissioner is authorized to collect the tax

by levy on that person’s property. See sec. 6331(a). As a

general rule, at least 30 days before taking such action, the

Commissioner must provide the person with a written final

notice of intent to levy that describes, among other things,

the administrative appeals available to the person. See sec.

6331(d).

Upon request, the person is entitled to an administrative

review hearing before Appeals (a collection due process

hearing). Sec. 6330(b) (1). The Appeals officer conducting

the collection due process hearing must verify that the

requirements of any applicable law or administrative

procedure have been met. Sec. 6330(c) (1). Section 6330(c)

prescribes the relevant matters that a person may raise at the

collection due process hearing, including spousal defenses,

the appropriateness of respondent’s proposed collection

action, and possible alternative means of collection.

A taxpayer may contest the existence or amount of the

underlying tax liability at a collection due process hearing

only if the taxpayer did not receive a statutory notice of

deficiency with respect to the underlying tax liability or did

not otherwise have an opportunity to dispute that liability.

Sec. 6330 (c) (2) (B).

16a

Appendix B

Following the collection due process hearing, the

Appeals officer must determine whether the collection action

is to proceed, taking into account the verification the Appeals

officer has made, the issues raised by the taxpayer at the

hearing, and whether the collection action, “balances the need

for the efficient collection of taxes with the legitimate concern

of the * * * [taxpayer] that any collection action be no more

intrusive than necessary.” Sec. 6330 (c) (3). We have

jurisdiction to review such determinations where we have

jurisdiction over the type of tax involved in the case.

Sec. 6330 (d) (1) (A); see Jannone v. Commissioner, 122

T.C. 287, 290 (2004).

Il. Petitioner ’s*Request for Relief

While petitioner claims that there are genuine issues of

fact for trial, he frames the issue before the Court as follows:

The issue before this Court is the

constitutionality of Title 26 of the U.S. Code [the

Internal Revenue Code], or any particular section

thereof, to the extent it is being applied to compel

persons to violate their protected liberties and

rights of individual conscience, as written or as

currently administered by the Internal Revenue

service. * * *

We see no issue of fact and dispose summarily of

petitioner’s claim that the Constitution allows him to retain

the unpaid tax in an escrow account until such time as it

“can be directed to non-military expenditures.” That claim

has no merit. It is representative of a class of arguments that

\7a

Appendix B

have been universally rejected by this and other courts. See,

e.g., United States v. Lee, 455 U.S. 252, 260 (1982) (“The

tax system could not function if [religious] denominations

were allowed to challenge the tax system because tax

payments were spent in a manner that violates their religious

belief.”); Tingle v. Commissioner, 73 T.C. 816 (1980) (The

Ninth Amendment was not intended to abridge the specific

power of Congress to lay and collect taxes from whatever

source derived and does not protect acts of conscience which

contest the appropriation of the revenue.)

Appeals committed no error in rejecting petitioner’s

claim.

Ill. Section 6673 Penalty

Respondent urges this court to impose a section 6673

penalty upon petitioner. Section 6673 (a) (1) permits the

Court to impose a penalty on a taxpayer, not to exceed

$25,000, if the Court finds: (1) that the proceedings brought

by the taxpayer were brought primarily for delay; (2) that

the taxpayer’s position is frivolous or groundless; or (3) that

the taxpayer did not reasonably pursue available

administrative remedies. Section 6673 (a) (1) is applicable

to collection due process proceedings. Pierson v.

Commissioner, 115 T.C. 576 (2000).

The purpose of section 6673 “is to compel taxpayers to

think and to conform their conduct to settled principles before

they file returns and litigate.” Coleman v. Commissioner,

791 F.2d 68, 71 (7th Cir. 1986); see also Grasselli v.

Commissioner, T.C. Memo. 1994-581 (quoting Coleman).

18a

Appendix B

A taxpayer’s position is frivolous if it is contrary to

established law and unsupported by a reasoned, colorable

argument for change in the law. E.g., Nis Family Trust v.

Commissioner, 115 T.C. 523, 544 (2000). We need not find

specific damages to invoke section 6673 (a) (1); rather, that

section is a penalty provision, intended to deter and penalize

frivolous claims and positions in proceedings before the Tax

Court. See Bagby v. Commissioner, 102 T.C. 596, 613-614

(1994).

We believe that petitioner’s position is frivolous under

the definition set forth above. Moreover, this is not the first

time that petitioner has appeared before this Court, nor is it

the first time he has adopted the position he has in this case.

In Jenkins v. Commissioner, T.C. Summary Opinion 1987-

322, petitioner claimed a credit on his 1985 income tax return

based upon his conscientious opposition to military

expenditures. Petitioner indicated that the amount that

respondent asserted he owed would be held in escrow. /d.

This court disallowed the credit, but it declined to impose a

penalty under section 6673. /d.

We believe a penalty under section 6673 is now

appropriate. Not only did petitioner’s prior proceedings

before this court serve to warn him that his arguments were

without merit, the settlement officer who conducted the

hearing also reminded petitioner of the possible sanctions

he might face by petitioning this court. Accordingly, because

we deem petitioner’s position to be frivolous, we impose

upon petitioner a penalty of $5,000.

19a

Appendix B

IV. Conclusion

Petitioner has failed to show any error in Appeals’

determination to proceed to collect by levy the unpaid tax.

Further, petitioner’s position is deemed to be frivolous for

purposes of section 6673 (a) (1) (B), and this court shall

impose a penalty upon him in the amount of $5,000.

For the foregoing reasons, it is hereby

ORDERED that petitioner’s motion for continuance filed

February 22, 2005, is deemed moot. It is further

ORDERED that this case is stricken from the March 14,

2005, New York, New York, Trial Session of the Court. It is

further

ORDERED that respondent’s motion for summary

judgment is granted. It is further

ORDERED that petitioner shall pay to the United States

a penalty in the amount of $5,000. It is further

ORDERED AND DECIDED that respondent may

proceed with the collection action for the taxable year 2001

as determined in the Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330, dated

October 23, 2003, upon which this case is based.

s/ James S. Halpern

James S. Halpern Judge

Judge

ENTERED: MAR -3 2005