Petition for Writ of Certiorari — Selgas v. Commissioner of Internal Revenue (No. 06-1677)

(1) Syoreme Coyd us.

: Bg 5 an

No. 961677545 75 2007

OEM OF TNE Cua

IN THE

Supreme Court of the Anited States

red

Thomas Drennan Selgas,

Petitioner,

VU.

Commissioner of Internal Revenue,

Respondent.

On Petition for Writ of Certiorari

To The United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

=

Charles E. McFarland

Counsel for the Petitioner

338 Jackson Road

New Castle, KY

(502) 845-2754

Attorney for Petitioner

June 2007

WiILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

I. ORIGINAL JURISDICTION PREREQUISITES

FOR TAX COURT

Pursuant to I.R.C. §6212 the Secretary of the

Treasury, after he makes a determination that there is a

tax deficiency with respect to any tax imposed by subtitle

A of the Internal Revenue Code, is required to send a

Notice of Deficiency to the taxpayer. The courts have

routinely held that a valid Notice of Deficiency is the

prerequisite for the Tax Court to exercise jurisdiction.

The question raised is: Does the Secretary’s failing

to comply with the statutory provisions for making a

determination by not following the provisions of I.R.C.

§6020(b) and/or the issuance and sending of Notice of

Deficiency by a person without delegated authority render

the Notice of Deficiency invalid, thereby causing the Tax

Court to lack jurisdiction?

II. REVIEWING COURT CONSIDERATION OF

ON NON-RECORD EVIDENCE.

The courts are uniform in refusing to cite their

decisions non-record or statements made in the parties’

briefs not supported by evidence introduced into the

record.

Lacking any support in the record, can the Tax

Court and the Appellate Court, by implication, consider a

statement in a brief submitted by the government that

claims a person holding an office equivalent too but

lacking the actual delegation of authority to be equivalent

was permitted to issue and send 2 Notice of Deficiency?

LIST OF ALL PARTIES

The caption of the case in this Court contains the

names of all parties (Petitioner: “Thomas Drennan

Selgas” and Respondent: “Commissioner of Internal

Revenue’).

ILIATIONS AND

FINANCIAL INTERESTS

Pursuant to Sup. Ct. Rule 29.6 Thomas Drennan

Selgas states:

1. He is not a subsidiary or affiliate of a publicly

owned corporation; and

2. There is no publicly owned corporation, which is a

party to this petition that has an interest in the

outcome.

ill

TABLE OF CONTEN

I IN iii ici ce cnivnssccnssassutinisimentenetseveuiensecconces i

Ie ae Fennec bcnktencikcccdideskiuepidshnnidindetitaucapeancinessevians il

Disclosure of Corporate Affiliations and Financial

aces gine 1k cic beituasususatngaqecceleiceduvedansaibubanaaaaapeavens ili

I a dic cco veascnsactsdnsecessoviuatsassecrainassanvens iv

NN I isc ccicsdeccavadvicsedeanncsstntdctbobecusacachceunes Vv

PERRIS BE. WU ERE OE COOTEROFOIS 6 .....ci cc ccccccccseccciscccccsccncsstseeces 1

INN I i cis crass indiesnobcncneansadeewbinicsarsdassansanens 1

PROM EO IIT CF PUITRMCIOEIORT 5... 00s. .ccncsscentncicaccoccosccsascosessesene 1

Statutory Provisions Involved ....................cccesssccccsesseseessees 1

NT ois dikes ennmesmanncussate 2

Remeors For Cirhieet CRS WE iocincceicccecccsccscescsiiscscsssscccseses 4

1.) A United States court of appeals has

decided an important question of federal

law that has not been, but should be,

settled by this Court, or has decided an

important federal question in a way that

conflicts with relevant decisions of this

2.) has so far departed from the accepted

and usual course of judicial proceedings, or

sanctioned such a departure by a lower

court, as to call for an exercise of this

Court’s SUPErviSOry POWET}................:.seececeeeeeceseeeees 4

3.) a United States court of appeals has

entered a decision in conflict with the

decision of another United States court of

appeals on the same important matter. ................. 5

MIU shcésiis cscuudiesbieaticckncssitestuaihpiaiuaxuileedancancousanaumcen 22

DI Piiiciten scbtacunkasel dcngonchwicemcaetciabicins\ccassackeieniie Appx la

Decision of the United States Tax Court (Entered

Nov 23, 2005) Docket No. 23425-04

FI Wass ceed cackdeiins Appx 2a

Bench Opinion of the United States Tax Court

(Orated Nov 2, 2005) Docket No. 23425-04

iV

I icteric nieininbiccinemiieiniioks Appx 12a

Telephone Conference Transcript Recorded

August 9, 2005. Docket No. 23425-04

I ik iainis ih ddcciaslbp echaiaidnddnnadhinsoneadoetean Appx 15a

The 5% Circuit Court of Appeal’s opinion (per

Circuit Judges Smith, Wiener, and Owen)

affirming the Tax Court decision is published at

Selgas v. C.I.R., 475 F.3d 697 (5th Cir. 2007)

PI Bi iasiicitsindcriaicisncnccsasintienssacarsiei Appx 2la

The 5 Circuit Court of Appeal’s denial for

rehearing, not published.

Pe a sic Cassada Kaien snductua ss innnnbadzancideioiien Appx 22a

INTERNAL REVENUE CODE SECTIONS:

6020, 6065, 6201, 6211, 6212, 7701(a)(11)-

(12)(A)Qi)

Se acct aeciditandinthiicccanscnsedcaskonsiieascines Appx 30a

Selected FOIA Responses from the Secretary’s

Disclosure Office

TABLE OF AUTHORITIES

Cases

Aguire v. Commissioner, 117 T.C. 324 (2001) ............ eee 8

Angelus Milling Co. v. Commissioner, 325 U.S. 293

iil son eC iccdicah lannd ach aaheuedsehteladaaminsibaninnvinanbins dante 15

Bokum v. Commissioner, 992 F.2d 1136 (11 Cir.

I tiated thansncctisc a uiekiinicocaeassnanbuaubinkphuaidbNsvewninkenscete 10

Bono v. United States, 113 F.2d 724 (2d Cir.1940).......... 22

Botany Worsted Mills v. United States, 278 U.S.

ss eanebeanaiandashanendbdoneinen 18

Diversified Numismatic, Inc v. City of Orlando, FL,

Be ar 0 as BED veda sascnsnscnccssccsounsstecnscosveceess 21

Duha v. Agrium, Inc., 448 F.3d 867 (6th Cir. 2006) ........ 21

Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380

Ra tia ciicnibicnici nih censtacihaeh dled atiabiatanepiaeiemieidieadtiintoianitient 17

Ferguson v. F.D.I.C., 164 F.3d 894 (5% Cir. 1999)........... 19

Franchise Tax Board v. Construction Laborers

Vacation Trust, 463 U.S. 1 (1983) .............. ec eeeeeeeees 11: 73

Freytag v. Commissioner of Internal Revenue, 501

Fs I ite Ssidas hci hiapicbinindedinicindianchendnctoimnaees 11, 12

Heckler v. Community Health Services, 467 U.S. 51

Ethics bas acdeh actus tiaabinanasaaeaqesunbiuienpeabonpnskvcabinviienss 19

Hempel v. United States, 14 F.3d 522 (11% Cir.

Bi iuis saith cainatisaicnidncinciacigiaskscteKabihdussiviitontincibidasixibhowsets 9

In re Barry, 48 B.R. 600 (Bkrtcy. E.D.Tenn. 1985)............ 8

Kelley v. Commissioner, 45 F.3d 348 (9th Cir. 1995)....... 10

Killen v. Reed & Carnick, 105 F.3d 669 (10th Cir.

MINED wisi ccictsealkin Cubesnion sickatuiaheleestautbohantaichacueiaceiaiasccsadctukenok 21

Laing v. United States, 423 U.S. 161 (1976)....7, 10, 11, 12

Louisiana Pub. Suc. Comm'n v. FCC, 476 U.S. 355

PED sckiicistensiiu nic ciinddkcumcaduageasiisnaunsaccachnsachbiadabadsenicakesichanvun 18

Lucas v. Pilliod Lumber Co., 281 U.S. 245 (1930)........... 15

Matter of Frank Fehr Brewing Co., 268 F.2d 170

et I ii x Son caccanccsscencaars ssn gn cscs Seadeciwuseuamnnnkn Goneaaicas 22

McClendon v. Indiana Sugars, Inc., 108 F.3d 789

I SO ecco oi sa cael ia inh ka Pandeabeutsbuduaiindbnncined 21

Olpin v. Commissioner, 270 F.3d 1297 (10th Cir.

ME dik iii carci ectaaheadies sannioaoscn shdwkkespidickehudoeccqiske wwaonadexoansh 15

Riley v. City of Montgomery, Ala., 104 F.3d 1247

Pa REMI PE iii ck sinc ca cicnss.dichecdeciehvesnaiidesuasinsdaeainaaiuesaions 21

Samuels, Kramer & Co. v. Commissioner, 930 F.2d

re I NEES cocci casehccidaiapaniensticnichaouniieacibdecsataansin’ 10

Sealy Power v. Commissioner, 46 F.3d 382 (5t» Cir,

BEEN ak iiternacc did tcbiedinticc: iecihakuaisiabacabbatielkkkddecidiasitinsatannkis 9

Selgas v. C.ILR., 475 F.3d 697 (5th Cir. 2007)................ v,1

Spector v. Commissioner, 790 F.2d 51 (8% Cir.

EE icseticcisiusstcaieisice iain cibincitaaaab akicaarmukbeddbancodiiiachaenbinn 10

Stoecklin v. Commissioner, 865 F.2d 1221 (11% Cir

DINE iene uli inca banks ceased ceakidgiitaacdedcimacbeiiadaninaedlintestetinhinans 10

Thomas v. Merchantile Nat'l Bank, 204 F.2d 943

UE MN UIE ioc inicics ii: sachin ch gesabcacintcoe ateasisenedceaelicadatianerbianlebibe 8

Warner Bros. Inc. v. Dae Rim Trading, Inc., 877

Fe BAe Ge Er Ns vicacisiicscsivcestetenicccccisccscedsesisicens 22

Whitsell v. Office of Personnel Management, 135

AF rs I viidenaseicciiciesandsaavchinsbnnchntescixcvce 21

Cases

Aguire v. Commissioner, 117 T.C. 324 (2001)................06.. 8

Angelus Milling Co. v. Commissioner, 325 U.S. 293

Ee MIEN tidelctbdntcnads acucctdoasscckedeewadhsensentalicenbiedss babtectouhabeicisceuns 15

Bokum v. Commissioner, 992 F.2d 1136 (11% Cir.

ah chicas Niclas cai en sikecdeeesisclaiscedsaaridipabiiceniiiiuswines 10

Bono v. United States, 113 F.2d 724 (2d Cir.1940).......... 22

Botany Worsted Mills v. United States, 278 U.S.

ee Ha sai otis ced cc idence wicobnk, lneasaesiinncebncatokvaaveievvcesvaens 18

Diversified Numismatic, Inc v. City of Orlando, FL,

Se Fe ee Ct i. BOD vnncinhiviitdcscvcentstsanscieisesciieconss 21

Duha v. Agrium, Inc., 448 F.3d 867 (6th Cir. 2006)........ 21

Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380

ey p MERSISSDSR SEPM ee lero sca ES Seeotyy nies Sn ge eRe SO OASIS RO One aE 17

Ferguson v. F.D.I.C., 164 F.3d 894 (5t» Cir. 1999)........... 19

Franchise Tax Board v. Construction Laborers

Vacation Trust, 463 U.S. 1 (1983) ..................ccccec00 11, 12

Freytag v. Commissioner of Internal Revenue, 501

BAe, A aio in tccenenicansbcuosdsasinpeniehadwncina sheaves 11, 12

Heckler v. Community Health Services, 467 U.S. 51

EO alae eae ce cana sca ch dndershcn dd Gcadivcadudnedana’ 19

Hempel v. United States, 14 F.3d 522 (11* Cir.

BI cisciasaspacescecenhaeaiads Glad sac can vatianiaavbtssGdldakoubadabinies detaxonss’s 9

In re Barry, 48 B.R. 600 (Bkrtcy. E.D.Tenn. 1985)............ 8

Kelley v. Commissioner, 45 F.3d 348 (9th Cir. 1995)....... 10

Killen v. Reed & Carnick, 105 F.3d 669 (10th Cir.

Ch 2 RAREST ASS pieletapr Oho SROROR teen a TST DIGI cy Monk Son ae 21

Laing v. United States, 423 U.S. 161 (1976) ....7, 10, 11, 12

Louisiana Pub. Suc. Comm'n v. FCC, 476 U.S. 355

SU alae diliias vidi uidainicunicansindlinbdeicckdahiuekaliinnvtedgcucthbessusvowwnéisens 18

Lucas v. Pilliod Lumber Co., 281 U.S. 245 (1930)........... 15

Matter of Frank Fehr Brewing Co., 268 F.2d 170

NE RN I acti aechics Sachikies a adic ahesunnds decdapeniaioaniponsecndganikeceoning 22

Vii

McClendon v. Indiana Sugars, Inc., 108 F.3d 789

I 21

Olpin v. Commissioner, 270 F.3d 1297 (10th Cir.

sane aia aacsclinic sa cszina scineaaaeda bh ekaavinccahs anboshiias 15

Riley v. City of Montgomery, Ala., 104 F.3d 1247

Ae et as WEE dais sk tcc stp tawhdaaccchacaaeacgubiuksisanecdaukcouukunoiv 21

Samuels, Kramer & Co. v. Commissioner, 930 F.2d

Re ate RIED oisnsh.cciccaaisctenGuabespuainsdiediobesatabinessanwelons 10

Sealy Power v. Commissioner, 46 F.3d 382 (5 Cir,

| BMG ARNE saiacre pects paw OSCE PRA OME TN rie Cen MERTENS TR RUNG ORCI 9

Selgas v. C.LLR., 475 F.3d 697 (5th Cir. 2007)...........00... v,1

Spector v. Commissioner, 790 F.2d 51 (8 Cir.

ERR INR en epad ae ap ae ee EE OH SOE eo TEER OS PORN ACN 10

Stoecklin v. Commissioner, 865 F.2d 1221 (11 Cir

BOR icc atiss tices sstistecd bidibaihsg Dabraghiaic dictates shubeeusebisebiestacee 10

Thomas v. Merchantile Nat'l Bank, 204 F.2d 943

isis so de sich ccd caccinciccokncss cha ated saeicada cnseios 8

Warner Bros. Inc. v. Dae Rim Trading, Inc., 877

Be Se RI sabes ssiini skasabeiecenicdaacocsaceosienss 22

Whitsell v. Office of Personnel Management, 135

A Te rs BIE BIE scan sn ceubncinre oid viinctanianataaawacintaaes 21

Statutes

Be Ie Ee NES oncccsiscsivcnnssikcolasapsionsshecssvaseasunacnaeaeeuen 1

I isin ccesnsses 5 is cidccins nase 1, 8,9

Oe ie NE occa cesicnsosiciacknncednddodsacasbsnsnbieubenauedseutaue nla 8

IIE said cpstsiciscsoansdanssschessensiaumobdiaipanasoniae passim

RR IID 5s cancussecvatovacacs enbonsvedskoincsbcscieastceaeaaee 9

Ree o.oo. al cy natgnvdeabaddaddncusaicducbcekdume ean Ope |

ae MIE Ne eicincsasiicsiisesviksuvcsiuesakcenaiiniandsbamankeandauenbaaeniie 6

PIRI ckiccicatsonsutcsssavensonavcbhonst cbuiihiijaieaaniccdsaann 1

TID a secnisssdu in vtpatioavidn dents ncnaeeceatab anesdateiadatn inane 6, 7

RRS agrees rate eeme ate ks tn 1, 3, 10, 19

IID <n csicsirs sx pdxiscinsis apninonvessanbiodsaelccagsankakmuanastaanae 9

Eee ea eP NE Meme Pm ner ONY Oc 3” 8,9

ae ios cise coviecaawhicannhislbocaaiuiapaecaiebaelsaeoulecaa tee 11

es IT oss 5s ccviniccdeceenkegsodepasanmihdeaiacsa Mann 6

ae a RIN vi cecsdvacissinisdiaensdnntsnsdicmannilicaaanaminaane 6

Other Authorities

Delegation Order 4-8 (Formerly DO-77, Rev. 28)...... 16, 19

Fed. Reg. Vol. 70, No. 136, Monday, July 18, 2005,

I A hic ison assnsncnseasianhebabebonsmiiantabensineeioes 13

Internal Revenue Bulletin, 2005-36, T.D. 9215............... 14

IE SIU UI BO oe daccaisickiisccianstcosceontarsensverdervonnncuaceeires 4

PET N IT OF CERTIORARI

Thomas Drennan Selgas respectfully petitions this

Court for a Writ of Certiorari to review the judgment of

the United States Court of Appeals for the Fifth Circuit in

this case.

OPINIONS BELOW

The Tax Court’s Final Decision (Appendix A) and

Bench Decision (Appendix B) (per Judge Mark V. Holmes)

were not unpublished. The 5t* Circuit Court of Appeal’s

opinion (per Circuit Judges Smith, Wiener, and Owen)

affirming the Tax Court decision is published at Selgas v.

C.L.R., 475 F.8d 697 (5th Cir. 2007) (Appendix D): A

motion for rehearing was denied, but not published

(Appendix E), nor was a stay of mandate sought.

STATEMENT OF JURISDICTION

The court of appeals entered its opinion and order on

January 16, 2007 and the Motion for Rehearing was

denied on March 21, 2007. Petitioner invokes this Court’s

jurisdiction pursuant to 28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant portions of I.R.C. §§6020, 6201, 6211,

and 6212 are set forth in the Appendix.

TA F THE C

A. Procedural History

On September 14, 2004, the Petitioner, Thomas Selgas

(Selgas) received a document purporting to be a 90-day

Statutory Notice of Deficiency. Selgas timely filed a

petition to the Tax Court on December 8, 2004.

Selgas filed a Motion for Summary Judgment

challenging the jurisdiction of the Tax Court which was

heard and denied on the call date of October 31, 2005.

When the case was called Selgas was seeking a

redetermination of the deficiency on the basis that the tax

was fully paid and claiming the purported Notice of

Deficiency was invalid. A trial was held on November 1,

2005 and the Tax Court issued a bench opinion on

November 2, 2005, holding the Notice of Deficiency was

valid and affirming the alleged deficiency in its entirety.

Judgment was entered on November 23, 2005. Selgas filed

a Motion to Vacate the judgment on December 22, 2005.

The Motion was denied without comment the same day.

Selgas timely filed a notice of Appeal to the 5 Circuit

Court of Appeals on March 15, 2006. The 5 Circuit

upheld the Tax Court on January 16, 2007. A motion for

Rehearing was denied on March 21, 2007.

B. Statement of Facts

On October 1, 2003 Selgas caused to be sent two sets

of 1040 tax returns for the year 2002 to the Commissioner

of Internal Revenue (CIR). These two tax returns were

prepared and signed by two different accounting firms,

Paul, Phipps, & Co., PLLC and Institute for Tax &

Financial Services, Inc. respectively. The returns were

completely filled out as far as the financial information

needed to calculate the correct tax concerned, but were

not signed by Selgas because they differed in the refund

amount shown to be due to Selgas. The CIR did not

process these returns.

On September 14, 2004, Selgas received a document

purporting to be a 90-day Statutory Notice of Deficiency.

Selgas timely filed a Petition with the Tax Court on

December 8, 2004 seeking a redetermination of the

purported deficiency, claiming the Notice of Deficiency

was not valid. On September 26, 2005, Selgas filed a

Motion for Summary Judgment on the basis that the Tax

Court lack jurisdiction because the Notice of Deficiency

was not valid. Selgas raised two issues: 1) the Notice was

invalid because the Secretary failed to make a valid

determination before issuing the Notice of Deficiency; and

2.) the Notice of Deficiency was not issued and sent by a

person with delegated authority to do so. In his motion,

Selgas submitted Freedom of Information Act (FOIA)

material that he had received for the CIR’s Disclosure

Office to the Tax Court as evidence showing that the

person who sent the Notice of Deficiency did not hold an

office listed in the delegation order authorizing the

issuance and sending of Notices of Deficiency.

On October 31, 2005 the Tax Court heard arguments

on the Motion for Summary Judgment and ruled in its

oral opinion that a Notice of Deficiency did not have to be

signed. The Court did not address the fact of who sent the

document, as specifically required in the law at I.R.C.

§6212, nor did the Court directly address the delegation of

authority issue, but nevertheless upheld the Notice of

Deficiency as valid. The following day the Tax Court

issued a bench opinion on November 2, 2005 holding that

a return was not required to be made or signed by the

Secretary, nor was a substitute return required and ruled

that Notice of Deficiency was valid.

The Court issued its judgment on November 23, 2005

and Selgas responded with a Motion to Vacate the

judgment on December 22, 2005. The Tax Court denied

the motion the same day without comment.

Selgas appealed the Tax Court’s decision on March 13,

2006.

Without oral arguments, the 5th Circuit upheld the

Tax Court’s decision. In it decision, issued on January 15,

2007, the Court rejected Selgas’ argument that the Notice

of Deficiency was issued by a person without delegated

authority by noting that the government had stated in its

brief that the person who issued the Notice of Deficiency

was in an office with equivalent authority. But the Court

reasoned that such an argument was largely irrelevant,

as a signature was not required to make the Notice of

Deficiency valid. The Court further ruled that the Notice

of Deficiency was valid despite the lack of a substitute

return prepared by the Secretary.

Selgas filed a Petition for Rehearing with the 5th

Circuit. Said Petition was denied without comment on

Mach 21, 2007. This Petition for a Writ of Certiorari

follows.

REASONS FOR GRANTING THE WRIT

A. Introduction.

Selgas is mindful of the criteria set forth in Supreme

Court Rule 10 which are used to determine whether the

Court should review a decision of an appellate court. The

criteria which are applicable in this case are:

1.) A United States court of appeals has

decided an important question of federal law that

has not been, but should be, settled by this Court,

or has decided an important federal question in a

way that conflicts with relevant decisions of this

Court;

2.) has so far departed from the accepted and

usual course of judicial proceedings, or

sanctioned such a departure by a lower court, as

to call for an exercise of this Court’s supervisory

power;

4

3.) a United States court of appeals has

entered a decision in conflict with the decision of

another United States court of appeals on the

same important matter.

Selgas is also mindful of the recent comments by U.S.

Suoreme Court Justices Scalia and Breyer from their

appearance at the American Constitution Society and the

Federalist Society event in Washington D.C. on December

5, 2006, which was recorded and posted on the C-SPAN

web site at: rtsp://video.cspan.org/60days/ac010607.rm:

We cannot judge a Judge simply on the basis

of whether we like the outcome of the case. ...

However, there is an implied responsibility to do

so; when a panel of [Appellate] Judges fails to

interpret the statutes reasonably, Judges are

supposed to interpret the statutes reasonably

even if they don't agree with them, because it is

not up to them to decide what garbage law is. ...

The only objective criteria [for an Appellate panel

to make it’s determination] are the words

adopted by Congress and once you get away from

giving them their fairest meaning, we are in

trouble. [Justice Scalia]

Subjective judgment of a Judge should not

play a significant role in the outcome of the case.

... [Justice Breyer]

With these principles in mind, Appellant believes that

in upholding the Tax Court's ruling the panel

misapprehended certain legal and factual issues in light

of Supreme Court decisions and other circuit court

decisions, departed from the normal and usual course of

judicial proceeding by not upholding the law as passed by

Congress.

ISSUE I

The Tax Court does not have jurisdiction when a

Notice of Deficiency is invalid due to:

e The Secretary failing to comply with the

statutory provisions for making a

determination pursuant to I.R.C. §§6201(a)(1),

6211(a);

e The Secretary not following the provisions of

I.R.C. §6020(b) to make a subscribed return

which is necessary for a valid determination;

e The person who issued and sent said notice

was without delegated authority from the

Secretary to do so.

A. Sub-issue 1.

The Secretary is required to make a

determination of a tax deficiency prior to issuing

and sending a Notice of Deficiency.

1. Synopsis of Statutory Requirements.

The statutory scheme that Congress intended as a

roadway to filing a petition to Tax Court starts with the

authority that the Secretary has for making assessments,

which is found in I.R.C. §6201. In addition authorizing

the Secretary to make inquiries, determinations and

assessments of all taxes §6201 also states,

“The Secretary siiall assess all taxes

determined by the taxpayer or by the Secretary

as to which returns or lists are made under this

title.”

It should be noted, under I.R.C. §7701(a)(11), the

term ‘Secretary’ has a special definition. ‘Secretary of the

Treasury “means the Secretary of the Treasury,

personally, and shall not include any delegate of his.” But

the term "Secretary" means the Secretary of the Treasury

or his delegate. The term "or his delegate," according to

subsection 7701(a)(12)(A)(i),

6

“when used with reference to the Secretary of

the Treasury, means any officer, employee, or

agency of the Treasury Department duly

authorized by the Secretary of the Treasury

directly, or indirectly by one or _ more

redelegations of authority, to perform the

function mentioned or described in the context.”

This definition of delegate will be very important in

the later discussion addressing the delegated authority

source.

Since the Secretary has statutory authority to make

assessments he also needs a statutory process of

determining any such assessment. The following statutes

explain the source of that authority.

First, The Secretary must determine that there is a

deficiency. A deficiency, in simple terminology, is defined

in I.R.C. §6211(a) as the amount of tax imposed by Title

26 which exceeds the sum of the amount shown on the

taxpayers return, plus any previously assessed amounts,

less any rebates. See Laing v. United States, 423 U.S. 161,

173-74 (1976) ("In essence, a deficiency as defined in the

Code is the amount of tax imposed less any amount that

may have been reported by the taxpayer on his return”).

Thus, pursuant to the laws passed by Congress, in

order for the Secretary to determine a deficiency there

must be a return. As was quoted earlier, §6201 authorizes

the Secretary to “assess all taxes determined by the

taxpayer or by the Secretary as to which returns or lists

are made under this title.” This authority to assess is

based on filing of returns, when either a taxpayer files a

return or the Secretary files a return.

The provision in the Internal Revenue Code which

permits the Secretary to make a return where a taxpayer

7

fails to make a return is found in I.R.C. §6020. It has two

steps. §6020(a) is the first step. §6020(a) does not give any

authority to make a return, but it does give the authority

for the Secretary to invite the taxpayer to either make his

own return or to sign the Secretary’s calculation for a tax

and waive the formal assessment process.

When the Secretary applies §6020(a) a “30 day letter”

is sent to the taxpayer. This 30 day letter invites the

taxpayer to file a tax return within a certain period of

time or sign a form prepared by the IRS. The prepared

form is generally Form 4549 which contains a calculation

of the proposed tax. In effect, under §6(20(a) the Form

4549 attached to the 30 day letter is treated as if it were,

in fact, the taxpayers unsigned return. When the 4549

form is signed by the taxpayer it becomes his tax return.

The practical aspect of this procedure is that a taxpayer

may waive the notice requirements of the IRC in

consenting to a deficiency assessment by signing the Form

4549.

This type of waiver has long been accepted. Thomas v.

Merchantile Nat'l Bank, 204 F.2d 943, 944 (5th Cir. 1953)

(interpreting a waiver executed by a taxpayer under §871,

the precursor to §6213, as having "waived the ninety-day

notice and other procedural requirements" of the statute).

A duly executed IRS Form 4549 is a proper waiver of the

deficiency notice requirements. See also Jn re Barry, 48

B.R. 600, 603 (Bkrtcy. E.D.Tenn. 1985) (discussing IRS

Form 4549 as constituting "a proper waiver of [deficiency]

notice as provided in I.R.C. § 6213(d)"); and Aguire uv.

Commissioner, 117 T.C. 324 (2001) (granting summary

judgment to the IRS on the ground that petitioners signed

IRS Form 4549, waiving their right to contest their tax

liabilities, and thus precluding the need to send them a

deficiency notice).

If a taxpayer neglects to respond to the ’30 day letter’

or fails to make a return or sign the Form 4549, step two

8

of §6020 becomes applicable. §6020(b) authorizes the

Secretary to make a return from his own knowledge and

from such information as he can obtain through testimony

or otherwise, if any person “fails to make any return

required by any internal revenue law or regulation made

thereunder at the time prescribed therefore, or makes,

willfully or otherwise, a false or fraudulent return.” The

status of such a return is stated in subsection (b)(2), i.e.

“Any return so made and subscribed by the Secretary

shall be prima facie good and sufficient for all iegal

purposes.”

In the case of a taxpayer which has failed to file a

return, once the Secretary has subscribed a return under

I.R.C. §6020(b), the Secretary is then authorized to issue

and send a Notice of Deficiency to the taxpayer. The

Notice of Deficiency is also called a ’90 day letter,’ because

once a valid Notice of Deficiency is issued I.R.C. §6213

mandates that when a taxpayer is sent a Notice of

Deficiency he has 90, or 150 if outside the United States,

to file a petition with the Tax Court for a redetermination

of the alleged deficiency.

Through this process Congress intended that a valid

Notice of Deficiency must be issued and served on a

taxpayer before the Tax Court has authority to rule on the

IRS alleged deficiencies. Pursuant to I.R.C. §6212(a) the

IRS must issue a valid notice of deficiency to the taxpayer

before the Tax Court can gain jurisdiction. See Hempel v.

United States, 14 F.3d 522 (11% Cir. 1994) (holding that

the Notice of Deficiency is the jurisdictional ticket to Tax

Court). See also Sealy Power v. Commissioner, 46 F.3d

382 (5 Cir, 1995) (“Tax Court only has jurisdiction when

the Commissioner issues a valid notice and the taxpayer

files a petition for redetermination”).

Thus, Congress created the United States Tax Court

"to provide taxpayers with a means of challenging

deficiencies made by the Secretary or the CIR, his

9

delegate, without first having to pay the alleged

deficiency. Without such a forum, taxpayers would have

to pay the asserted deficiency and then initiate a suit in ©

federal district court for a refund." Samuels, Kramer &

Co. v. Commissioner, 930 F.2d 975, 979 (2"4 Cir. 1991). As

an Article I court, the Tax Court is a court of "strictly

limited jurisdiction." Kelley v. Commissioner, 45 F.3d 348,

351 (9th Cir. 1995). A notice of deficiency issued by the

IRS pursuant to §6212 is the taxpayer's jurisdictional

"ticket to the Tax Court." Bokum v. Commissioner, 992

F.2d 1136, 1139 (11 Cir. 1993) (quoting Stoecklin v.

Commissioner, 865 F.2d 1221, 1224 (11% Cir. 1989));

Spector v. Commissioner, 790 F.2d 51, 52 (8 Cir. 1986)

(citing Laing v. United States, 423 U.S. 161, 165 n.4

(1976)), and holding that "the determination of a

deficiency and the issue of a notice of deficiency is an

absolute precondition to tax court jurisdiction").

In a nutshell, the statutory authority for the Tax

Court to have jurisdiction to adjudicate the validity of a

tax deficiency determined by the IRS requires a valid

Notice of Deficiency being issued pursuant to statutory

guidelines. Without a valid Notice of Deficiency the Tax

Court lacks jurisdiction. Selgas raised the issue at Tax

Court that no determination had been made as the CIR

did not make a return pursuant to §6020(b). Without such

a return and subsequent determination the Notice of

Deficiency was invalid and did not confer jurisdiction on

the Tax Court.

The Tax Court rejected his argument and the 5%

Circuit confirmed the Tax Court’s decision.

2. Certiorari Is Merited Because the 5* Circuit’s

Decision Below Conflicts with Decisions of

This Court.

The 5 Circuit cited Laing v. United States, 423 U.S.

161, 174 (1976) for the statement “Where there has been

10

no tax return filed the tax deficiency is the amount of tax

due.” This statement was taken out of context. Because of

the misunderstanding of the 5% Circuit regarding the

holding of the Laing court, its decision is in direct conflict

with another Supreme Court decision. While the Laing

court did make the forgoing statement it was not a

general statement applying to all situations. In context,

the statement was in relation to a particular section of the

code, §6851 which made an exception to the normal

deficiency procedure because the tax due under §6851 was

“due immediately upon termination.” This exception is not

applicable in Selgas’ case.

Furthermore, any decision that uses the statement in

Laing out of context, will be in direct conflict with at least

two other Supreme Court decisions. The Supreme Court

in Franchise Tax Board v. Construction Laborers Vacation

Trust, 463 U.S. 1, 17 (1983) expressed its extreme

reluctance to deviate from the principle that the language

used by Congress is the intent of Congress. Accordingly,

the Supreme Court will not interpret a portion of one

statute taken out-of-context and apply it in such a

manner as to render another portion of a _ statute

superfluous, ineffective and unnecessary, This principle

was made even more firm in Freytag v. Commissioner of

Internal Revenue, 501 U.S. 868, 873 (1991) wherein the

Court stated that, “When we find the terms of a statute

unambiguous, judicial inquiry should be complete except

in rare and exceptional circumstances.” Freytag also

reaffirmed at page 874 that “courts ‘are not at liberty to

create an exception where Congress has declined to do

9

so.

Selgas filed returns that were not signed. This made

them non-processable. In effect, it was the same as if he

had not filed the returns. In such a situation §6020(b)

becomes applicable. To claim no return is required in the

case which has not been an exception by Congress is to

11

render §6020(b) “superfluous, ineffective and

unnecessary.”

Congress through its language required a return to be

made where no return was filed. Selgas’ situation does not

conform to any of the exceptions provided by Congress.

Accordingly, this Court needs to resolve’ the

misinterpretation of the 5t* Circuit regarding Laing and

review the decision in light of the principles in Franchise

Tax Board and Freytag.

3. The 5th Circuit’s Affirming of a Tax Court’s

Ruling that no Returns are Required by the

Secretary Has So Far Departed From the

Accepted and Usual Course of Judicial

Proceedings and Has Sanctioned Such a

Departure by the Tax Court as to Call for an

Exercise of This Court’s Supervisory Power.

A incredulous set of circumstances was presented by

the CIR at the Tax Court. In an effort to by-pass the clear

language of §6020(b) the CIR clams to have attached to

the Notice of Deficiency a Form 13496.

The government answered the Petition and claimed

that the Notice of Deficiency included, in addition to the

two page notice, the unsigned agent’s report (Form 4549)

and a document entitled ‘IRC Section 6020(b)

Certification’ (Form 13496). These additional documents

were attached to the governments Answer to the Petition.

Just prior to trial, Selgas stipulated that he received the

invalid document purporting to be a Notice of Deficiency

with the unsigned agent’s report. But he did not stipulate

to receiving the 6020(b) Certification document.

According to the CIR the Form 13496 and its

accompanying documents were supposed to substitute for

a return. The Tax Court accepted that argument.

12

What makes the argument incredulous is_ the

testimony of the IRS paralegal allegedly confirming the

existence of the form. According to the CIR, in its

Appellee Brief, a paralegal testified at trial that “the

Commissioner . would, in the ordinary course of

business attach that document to a notice of deficiency

issued in a case like this where there is no record of

receiving a return from the taxpayer.” (Emphasis added).

The alleged 13496 form that the paralegal was referring

to was claimed to have been dated in July of the year

2004.

It would have been legally impossible for the paralegal

to be truthfully testifying to the existence of the form

13496 in July of 2004 as a document used in the ordinary

course of business when the document was not authorized

until July 18, 2005.

The Tax Court on page 3 of its Bench Order delivered

on November 2, 2005 specifically found that the

Certification was in fact attached to the original Notice of

Deficiency as claimed by the government.

The Tax Court relied on testimony by an IRS

employee that “it was in keeping with its normal practice

of preparing SFRs when the taxpayer has not filed.” This

statement by the IRS could not be true either factually or

legally. The IRC Section 6020(b) Certification could not

have been a part of the normal practice of the IRS

procedures. The form was not even proposed until July 18,

2005. The Form 13496 first appeared in a temporary

regulation in the Federal Register on July 18, 2005, see

Fed. Reg. Vol. 70, No. 136, Monday, July 18, 2005, at page

41165.

Further temporary regulations regarding the 6020(b)

Certification and the rational behind the temporary

regulation can be found at Fed. Reg. Vol. 70, No. 136,

Monday, July 18, 2005, pp 41144-46. Since the IRC

13

Section 6020(b) Certification otherwise known as Form

13496 was not legally available until July, 18, 2005, it

could not have been used, either physically or legally on

July 18, 2004.

Furthermore, by the IRS’ own official announcement,

the effective date of the use of the Form 13496 was not

until July, 18, 2005. On September 6, 2006 the

Commissioner issued Internal Revenue Bulletin, 2005-36,

T.D. 9215. In relation to the regulations regarding the use

of the Form 13496, also called IRC Section 6020(b)

Certification the Deputy Commissioner, Mark E.

Matthews, specifically stated the effective date of the

rules governing the use of the Form 13496. The first

indication of an effective date was in the introductory

material wherein it was stated, “Effective Date: These

regulations are effective July 18, 2005.” The second

warning of an effective date was at the conclusion of the

Bulletin wherein it was stated, “This section applies to

returns prepared under section 6020 after July 18, 2005.”

Thus, by the government’s own official admission, the

Form 13496 did not apply to returns prepared by the IRS

until July, 18, 2005. Since the Form 13496 submitted as

an alleged substitute for return was dated July 19, 2004,

one year before it was deemed effective, it was clearly not

authorized.

In face of the fact that the Form 13496 did not exist

until one year after it was allegedly attached to a Notice

of Deficiency, the tax Court found her testimony credible

and ruled that a substitute for return was in fact

prepared. The 5‘ Circuit ignored the argument in favor of

the erroneous belief that no return was required at all.

The CIR clearly was attempting to by-pass the clear

meaning of the laws passed by Congress, specifically,

§6020(b). In essence the CIR was taking the position it

was above the law passed by Congress and it could make

14

poe

i

its own law. The Tax Court allowed it and the 5“ Circuit

did nothing to prevent it.

It should be noted, contrary to the government’s

position and the approval of it by the Tax Court and the

5th Circuit, the CIR is not above the law. The case of Olpin

v. Commissioner, 270 F.8d 1297, 1300 (10th Cir. 2001)

sets forth a very strong legal principle that is being

ignored. It states, “The Supreme Court has stated that

‘explicit statutory requirements [ ] must be observed and

are beyond the dispensing power of Treasury officials.”

Quoting from Angelus Milling Co. v. Commissioner, 325

U.S. 293, 296 (1945) and citing Lucas v. Pilliod Lumber

Co., 281 U.S. 245 (1930). In other words, neither the IRS

officials nor the courts can ignore the requirements of the

Code.

For the foregoing reasons the Supreme Court needs to

exercise its supervisory powers over the 5 Circuit and

the Tax Court and remind both courts that the laws

passed by Congress are to be complied with. This applies

even to the CIR.

B. Sub-issue 2.

A Notice of Deficiency is not valid if it is issued

and sent by a person that does not have the

delegated power to issue and send it.

1. Factual Background.

In his Motion for Summary Judgment Selgas raised

the undisputed fact that the document purporting to be a

Notice of Deficiency received by Selgas was not issued,

sent or signed by a person with delegated authority to

issue and send the notice. Selgas specifically noted at

Footnote #2 on page 2 of the Motion for Summary

Judgment that the purported Notice of Deficiency was not

properly signed in accordance with Delegation Order 4-8.

In Exhibit 1, attached to the Motion for Summary

Judgment Selgas explained in great detail that the person

15

signed the purported Notice of Deficiency was not

authorized to either issue the notice, or to send it.

The purported Notice of Deficiency was signed by a

Timothy A. Towns from the Compliance Center in Ogden,

Utah. Pursuant to a FOIA request made by Selgas, it was

discovered ti:at Timothy A. Towns was, at the time of the

alleged signature on the Notice of Deficiency on

September 14, 2004, a “Supervisory Program Analyst.”

Selgas included in Exhibit 1 of *js Motion for

Summary Judgment, at page 7, the ~.ctire Delegation

Order 4-8. It reads,

Delegation Order 4-8 (Formerly DO-77,

Rev. 28)

1. Authority to Issue Notices of Deficiency and/or

Execute Agreements to Rescind Notices of

Deficiency

2. Authority: To sign and send to the taxpayer by

registered or certified mail any notice of

deficiency.

3. Delegated to: Appeals Team Managers and

Appeals Team Case Leaders (as to their

respective cases); Large and Mid-Size Business

(LMSB) Territory Managers; Small

Business/Self-Employed (SB/SE) Field Directors:

Accounts Management and Submission

Processing; Campus Department Managers in

SB/SE Compliance Services; SB/SE Compliance

Field Territory Managers; SB/SE Technical

Services Revenue Agent Reviewers GS-12 and

Tax Compliance Officer Reviewers GS-09; Tax

Exempt/Government Entities (TE/GE) Reviewers

GS-12; Wage & Investment (W&I) Directors:

Accounts Management, Field Compliance

Services and Submission Processing; W&l

Territory Managers.

16

Delegated Order 4-8 specifically authorizes certain

persons or offices to “sign and send to the taxpayer by

registered or certified mail any notice of deficiency.” It

will be noted that a ‘Supervisory Program Analyst’ is not

one of the persons with delegated authority to sign and

send a notice of deficiency.

The government failed to dispute this fact with any

evidence at all. Instead, the government responded in its

response to the Motion for Summary Judgment by

claiming that Towns’ position was equivalent to a

Department Manager. The claim was not supported by

any evidence or legal authority whatsoever.

Exhibit D of Selgas’ Motion for Summary Judgment

contains a detailed description of Towns’ position as a

Supervisory Program Analyst. In general, his position

involves advising the Director and other top management

officials. There is no mention in the entire job description

of a Supervisory Program Analyst having any contact

with taxpayers, directly or indirectly. The Supervisory

Program Analyst’s job is to direct programs, not deal with

taxpayers. A Supervisory Program Analyst is simply not a

person or office listed in Delegation Order 4-8.

2. Certiorari Is Merited Because the 5“ Circuit's

Decision Below Conflicts with Decisions of

This Court.

As a preliminary matter, it should be noted that it is

well-settled law that government agents must operate

within the confines of their authority. The Supreme Court

in Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947),

noted the clear duty and long standing principle that

persons dealing with the government must verify the

authority being exercised. The Supreme Court stated,

“Whatever the form in which the government

functions, anyone entering into an arrangement

17

with the government takes the risk of having

accurately ascertained that he who purports to

act for the government stays within the bounds of

his authority. The scope of this authority may be

explicitly defined by Congress or be limited by

delegated legislation, properly exercised through

the rule-making power, and this is so even

though, as here, the agent himself may have been

unaware of the limitations of his authority.” Id

332 U.S. at 384.

In other words, the source of an agent’s authority or

an agency's power is derived from two sources: that

authority explicitly determined by statute passed by

Congress or that authority that has been provided

through delegation. If either of these two sources are

lacking, the authority exercised is void. Selgas contends

that the Notice of Deficiency is invalid in that it lacks

authoritative power from both sources.

As a matter of law, it is essential for a federal

employee to possess delegated authority to perform any

particular act. The absence of delegated authority means

that the act in question was beyond the scope of the

employee's duties, and therefore unlawful.

Selgas presented in his Appellant Brief a wealth of

cases that illustrate the necessity for a public employee to

possess delegated authority.

The Supreme Court has held that the rules regarding

the necessity for a government employee to have

delegated authority to act apply with equal force in the

field of tax law. In Botany Worsted Mills v. United States,

278 U.S. 282, 288-289, (1929), the mills and a subordinate

revenue agent entered into an informal compromise

agreement regarding the tax liability of the mills. That

agreement was held invalid on the ground that the agent

lacked delegated authority to make the agreement. See

also Louisiana Pub. Svc. Comm'n v. FCC, 476 U.S. 355,

18

374 (1986), (“an agency literally has no power to act ...

unless and until Congress confers power upon it”).

The fact that a federal employee must operate within

his delegated authority is not a new concept to the 5th

Circuit. In Ferguson v. F.D.I.C., 164 F.3d 894, 898 (5* Cir.

1999) the 5 Circuit adopted the Federal Crop Ins. Corp.

principle and added “[T]hose who deal with the

Government are expected to know the law and may not

rely on the conduct of Government agents contrary to

law.” Citing Heckler v. Community Health Services, 467

U.S. 51, 63 (1984).

The Delegation Order, in its essence, is a jurisdictional

boundary, just like that between the appellate courts of

the 9 Circuit and the 5% Circuit. Both courts are

equivalent, yet their jurisdictions are separate and

distinct. Jurisdictional boundaries prohibit the 9» Circuit

from reviewing a decision from a district court in the 5

Circuit.

All these cases point to the same conclusion, that as a

matter of law, when an agent has no delegated authority

to act and he does so, his act is void. Congress explicitly

authorized the Secretary to send a notice of deficiency

under I.R.C. §6212. That authority was delegated to

certain offices or officers through Delegation Order 4-8.

Delegation Order 4-8 did not include a “Supervisory

Program Analyst.” Timothy Towns had no delegated

authority to issue and send a notice of deficiency. His acts

of signing and sending the notice were void, thereby

making the Notice of Deficiency sent to Selgas invalid.

Since the Notice was invalid the Tax Court lacked

jurisdiction.

ISSUE II

Lacking any support in the record, can the Tax

Court and the Appellate Court, by implication,

consider a statement in a brief submitted by the

19

government that claimed a person holding an office

equivalent too but lacking the actual delegation of

authority to be equivalent was permitted to issue

and send a Notice of Deficiency?

A. Background.

As was set forth in detail in the previous sub-issue,

Selgas challenged the jurisdiction of the Tax Court

through a Motion for Summary Judgment. One of the

reasons Selgas argued that the Tax Court lacked

jurisdiction was that the purported Notice of Deficiency

sent to him was not issued and sent by a person with the

proper delegation of authority.

The CIR responded to the challenge in it response to

the Motion for Summary Judgment by stating that the

particular individual, Timothy A. Towns had authority to

issue the notice. In it brief the CIR statement that even

though the office which Towns occupied was not on the

list set forth in Delegation Order 4-8, his office was

nevertheless equivalent to the office of a Campus

Department Manager. Accordingly, in the CIR’s view

Towns was authorized to issue and send the Notice of

Deficiency. The CIR offered no legal authority for its

position, nor did it submit any documentation supporting

its conclusion. It was simply a statement made out of thin

air with no record evidence to support it.

The Tax Court basically ignored the issue when it

ruled on the Motion for Summary Judgment by side-

stepping it. It ruled that a signature was not required to

render a Notice of Deficiency valid. Later, when Selgas

renewed the challenge in his Motion to Vacate, the Tax

Court implicitly accepted the CIR when it denied the

motion without comment. The 5'* Circuit considered the

CIR argument when it reached its decision to uphold the

validity of the Notice of Deficiency.

20

B. Certiorari Is Merited Because the 5‘ Circuit’s

Decision Below Conflicts with Decisions of Other

Circuit Courts.

The circuit courts that have addressed the issue of

whether a court may consider non-record evidence or

statement made in parties’ brief not supported by the

record has universally rejected such consideration. The

following are circuit court cases to which the 5% Circuit is

in conflict.

1.) Duha v. Agrium, Inc., 448 F.3d 867, 879 (6th Cir.

2006) (“Arguments in parties' briefs are not

evidence.”);

2.) McClendon v. Indiana Sugars, Inc., 108 F.3d 789,

795 (7th Cir. 1997) (“Evidence that was not

proffered to the district court in accordance with

its local rules is not part of the appellate record; it

has no place in an appellate brief.);

3.) Killen v. Reed & Carnick, 105 F.3d 669 (10th Cir.

1997) (“Defendants' motion to strike nonrecord

matter is GRANTED.”);

4.) Diversified Numismatic, Inc v. City of Orlando, FL,

949 F.2d 382, 384 (11 Cir. 1991) (“We agree that

appellants should not have referenced material not

in the record, and we will not consider any non-

record evidence or arguments [based] on non-

record evidence.”);

5.) Riley v. City of Montgomery, Ala., 104 F.3d 1247,

1251 (llth Cir. 1997) (“We grant Defendants’

motion [to strike] for those portions of Plaintiff's

brief which refer to ‘evidence’ that is not in the

record.”); and

6.) Whitsell v. Office of Personnel Management, 135

F.3d 777 (Fed. Cir. 1998) (Neither of the newly

submitted documents, however, was introduced

into evidence or otherwise presented to the

administrative judge or the full Board, and the

parties have not argued that those documents are

21

subject to judicial notice. We therefore have not

considered those non-record materials in deciding

this case.”);

Finally, the 2"¢ Circuit illustrates the fundamental

error in considering non-record evidence. In Warner Bros.

Inc. v. Dae Rim Trading, Inc., 877 F.2d 1120, 1127-1128

(2nd Cir. 1989), the court stated, “The merest novice in

the law knows that "[flactual statements contained in a

party's brief are not a part of the record." Citing Matter of

Frank Fehr Brewing Co., 268 F.2d 170, 183 (6th

Cir.1959); and Bono v. United States, 113 F.2d 724, 725

(2d Cir.1940).

Thus, it is clear that the 5‘ Circuit’s consideration of

non-record evidence contained in the CIR’s brief that were

not supported by record evidence was error and in conflict

with other circuit decision.

CONCLUSION

Seglas has show shown that the 5» Circuit’s decision

against him in conflict with several decisions of this Court

and in conflict with other circuit decisions. Selgas has also

shown that the decision of the 5‘ Circuit has so far

departed from the accepted and usual course of judicial

proceedings and has sanctioned such a departure by the

Tax Court as to call for an exercise of this Court’s

supervisory power. Accordingly, the Supreme Court must

grant the Petition for a Writ of Certiorari.

Respectfully Submitted on this 15‘ Day of June, 2007.

/si Charles E. McFarland

Charles E. McFarland, Ohio bar # 31808

338 Jackson Road

New Castle, Kentucky 40050

(502) 845-2754, mcfarlandc@bellsouth.net

Attorney for the Petitioner

22