Petition for Writ of Certiorari — Hendricksonson v. United States (No. 07-624)

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Supreme Court, U.S.

FILED

RACK

RECORDS ;

\ AND | 07-624 NOV 3- 207

‘BRIEFS CASENO. orice OF THE CLERK

IN THE SUPREME COURT OF THE UNITED

STATES

Peter E. Hendrickson, Petitioner

Vv.

United States, Respondent

On Petition for Writ of Certiorari to the United

States Court Of Appeals for the Sixth Circuit

Petition for Writ of Certiorari

Petitioner Peter E. Hendrickson

232 Oriole Road,

Commerce Twp., Michigan, 48382

248-366-6858

Proceeding Pro Se

QUESTIONS FOR REVIEW

1. Whether the Court of Appeals erred in holding that

the language of the 1954 Internal Revenue Code

constitutes an entire, substantive replacement of all

United States internal revenue law enacted prior to

August 16, 1954 (and particularly as regards the

summons authority), and is now the free-standing,

independently enacted, whole body of federal internal

revenue law, general and permanent in nature;

2. If not, does the language of section 7602 of the 1954

IRC concerning IRS (or Treasury Department)

summonses and examinations actually authorize

searches through the papers, effects and records of, or

about, any person whatsoever, without distinction of

context, the person’s relationship to the federal

government (or lack thereof), whether a waiver of

Fourth Amendment protection has or has not been

made, the existence of evidentiary cause of any kind

(or lack thereof), and in the face of unchallenged

sworn evidence that, in fact, no cause exists, and that

the target of the summons is not within the scope of

its lawful authority.

TABLE OF CONTENTS

aici siciciirsniatasddaa tidied ttibaninidees i

IE IN.) scciatccesancech deadadiaeeanstheabinouteanned iv

i SE I RM A OR ETERS eT EO 1

Statement of Jurisdiction..................cccccccrccscrsscccseseceeeees 1

Provisions of Law Involved...................cccssssssesssseeseccsees 1

SoC ee OE CIRO GR i icicscteosttaierscseerecovenmtrienteeesees: 1

REASONS THIS PETITION SHOULD BE

GRANTED

i. The Ruling Of The Court Below Works To

Undermine The Express Will Of Congress.................. 5

2. Not A Single Authority Supports The Lower

Court’s Conclusion That §7602 Of The 1954 IRC Is

Itself, Or Accurately Reflects, The Summons

DRE DD:.« sscscisnrxstesesienetceien taeda anid 11

3. ALL Relevant Authority Declares The Lower

Court’s Decision To Be In Error, Including Rulings By

This Court And The Fourth Circuit... cee 14

4. If The Law Really DID Mean To Extend The

Summons Authority As Ruled By The Lower Court, It

Would Be Void Under The Fourth Amendment........ 19

CON CLAN, cccssicsacisctsernsnticimmanenaimnaaened 27

APPENDIX

Order of Che Digital CONT i ccicinsiiccriniviterinncnsnenena 29

Order of the Appellate Parnel.............c.cccccseesseeeesereeeeees 30

Denial of En Banc Rehearing. .........::cccccssseeeeeecssseeeees 33

ee i tiiisnibsititant «. spinquinstcenianiidorenrntitenmenntinniagii 34

Pvc hcitenssinitevanvnnirricnsieaniitectneniiliiniiaiinil 35

Fe Fe iiictnticrinctieeninnintinnininimnmmtie 35

Preface to the Internal Revenue Code of 19339............ 36

Tax Analysts v, IRS, 214 F.3d 179 (D.C. Cir. 2000)

PIII Ficsccrnencastiiacrsinsianieienniinaciegenenuncaianiitminitenin 37

IRAE 6.2.13.68 (0B-O1-DOOT .ocercescvrvnsrveenneeraseerevenees 38

Excerpt from the derivation tables of the Preliminary

Materials of the IRC of 1986...............:ccccccesseesrsereeeeees 38

Table A of the Appendix to the 1939 IRC- “Derivation

of Internal Revenue Code” (relevant portion)............. 39

Page 95 of the 1992 Congressional Joint Commitiee on

Taxation Report “Derivation of Code Sections”

(relevant

Affidavits filed with the Petition to Quash filed in the

SN Ci ieicnsissseccntniicetdoneseuctnidnianennidinidionnmbannaiiind 41

ill

TABLE OF AUTHORITIES

Fundamental Law, Statutes and Code Sections:

26 CFR 301.6203-1...ccccesssssssssssssessesssee DS. eter 23

ALN OLE RAD ITIL 24

SE LL REET 23

Ng OT AR SRT SE 21

SE LLL TT 16

ACT AUG. 16, 1954, CH. 736, 68A STAT 3.000.000... 15

Fourth Article of Amendment to the Constitution of the

United States Of Ammericts.......cccssssesecsecsscsnzesscescosecseeces 20

Revised Statutes, Section 3173, as amended in 1919

and re-enacted per Section 1115 of the Revenue Act of

SNe isdinx Gioia iciaclenuine-cssaseainsebeiepbintaladlab-ebadshiancansteedinlaksniiintia 8, 25

Section 3615 of the IRC of 1939............00scsssescssesssoeeeees 8

Section 7602 of the IRC of 1954..........ccccssscsseccesessseees 12

Section 93 of the Revenue Act of 1862..........:ccccsceceeees 23

Additional Authorities:

Congressional Joint Committee on Taxation’s 1992

‘Derivations of Code Sections’ report.......scscecceeereeeeees 17

Declaration of Rights of the Pennsylvania Constitution

OS TT FE AIOE Borcetiintnictiiiscthinatatetncntennnenetaneennienninvemeeven 20

Internal Revenue Manual section 5.1.11.6.8.............. 24

Preface to the Internal Revenue Code of 1939.............. 2

Preliminary Materials section of the IRC of 1982........ 6

Table A of the Appendix to the IRC of 1939- Derivation

Of Teche endl TOON CR oriccscensnmsosssscvresscesscecviscocntzenaciein 7

The headnote of the Preliminary Materials section of

ad Ts OF Fie itetirttnciercasinctincrvaneniionpricisiinteripiaii 15

Transcript from Aug, 21-22 hearing on withholding

provisions of the 1942 Revenue Act before the

subcommittee of the Committee on Finance, U.S.

US House of Representatives Office of the Law

Revision Counsel Positive Law Code list...........::.:000+ 16

Virginia Declaration of Rights Article X........ccs:s0000+ 20

Cases:

Connecticut Nat'l. Bank v. Germain, 503 U.S. 249

SEER Tan Neen Umer STL NER asa At AA 6

Donaldson v. United States, 400 U.S. 517 (1971)..2, 14

Fulman v. United States, 434 U.S. 528 (1978)....... 2,18

Miranda v. Arizona, 384 U.S. 436 (1966)...............3, 10

Stephan v. United States, 319 U.S. 423 (1943).......... 16

Tax Analysts v. IRS, 214 F.3d 179 (D.C. Cir.

Bee :nssvveinccvipslenniyticellaneseiinteniiaietieladninaiaalanuaiuemniiiauatiid 13

United States v. Bisceglia, 420 U.S. 141 (1975)......... 11

United States v. LaSalle Nat’l. Bank, 437 U.S. 298

ike ssicsincnsicsnmmchaacenhenitaseeibtcnsualendtamngilinamatamsnaceted 2, 6,14

United States v. Powell, 379 U.S. 48 (1964).........:c006 7

Walters v. Nat. Assn of Radiation Survivors, 473 U. S.

I Nc tisincnvwaitstssniscsstteiiiniesaninihiticssiaihaipasnianadtutaniibiail 2,14

Washington-Dulies Transp., Ltd. v. Metropolitan

Washington Airports Authority, 263 F.3d 371 4" Cir.

OPINION BELOW

The Sixth Circuit issued its opinion as “not

recommended for publication”, and the case manager

is able to provide only the following designation for

the case: 20070410 06-1870. The opinion is attached.

STATS.MENT OF JURISDICTION

This Court has jurisdiction under Article III of the

Constitution of the United States of America as the

Court of appellate jurisdiction of all controversies to

which the United States is a party. Judgment for

review was entered by the Sixth Circuit Court of

Appeals on April 10, 2007, and Petition for En Banc

Rehearing was denied on August 8, 2007

PROVISIONS OF LAW INVOLVED IN THIS

CASE

The Fourth Article of Amendment to the USS.

Constitution; Sections 3163 and 3173 of the Revised

Statutes; Section 1115 of the Revenue Act of 1926;

Sections 3614, 3615, 3632 and 3654 of the Internal

Revenue Code of 1939; and 26 USC 7602.

STATEMENT OF THE CASE

This case involves fundamental issues about the

accurate scope and application of IRS summons

authority never before litigated, yet critical to the

proper deployment of that frequently-invoked, high-

potential-for-abuse authority, and is of profound

interest to the American people as a whole. The

ruling of the Court below regarding those issues is in

direct conflict with repeated rulings by this Court and

at least the Fourth Circuit Court of Appeals, and rests

on a misrepresentation in appellate proceedings of a

single completely inapposite-- indeed, contrary--

ruling in a DC Circuit case, cited but never quoted.

Nonetheless, the ruling below is already being used by

the IRS in representations to other courts in similar

cases. Thus, this matter is of immediate and

significant importance.

“ £7602] has its ascertainable roots in the 1939

Code’s 3614 and, also, 3615 (a)-(c)...” Donaldson

v. United States, 400 U.S. 517 (1971);

Section 7602 derives, assertedly without change in

meaning, from corresponding and_ similar

provisions in 3614, 3615, and 3654 of the 1939

Code. " United States v. LaSalle Nationa] Bank,

437 U.S. 298 (1978) (referencing H. R. Rep. No.

1337, 83d Cong., 2d Sess., A436 (1954); S. Rep.

No. 1622, 83d Cong., 2d Sess., 617 (1954)).

“absent [substantive] comment it is generally .

held that a change during codification is not

intended to alter the statute’s scope. See Muniz v.

Hoffman, 422 U.S. 454, 467-474 (1975).” Walters

v. Nat. Assn. of Radiation Survivors, 473 U.S. 305

(1985);

As we said in United States v. Ryder, 110 U.S.

729, 740 (1884): “It will not be inferred that the

legislature, in revising and consolidating the laws,

intended to change their policy, unless such

intention be clearly expressed.” (Citations omitted).

Fulman v. United States, 434 U.S. 528 (1978);

"The internal revenue title, which comprises all of

the Code except the preliminary sections relating to

its enactment, is intended to contain all the United

States statutes of a general and permanent nature

relating exclusively to internal revenue, in force on

January 2, 1939; also such of the temporary

statutes of that description as relate to taxes the

occasion of which may arise after the enactment of

the Code. These statutes are codified without

substantive change and with only such change

of form as is required by arrangement and

consolidation. The title contains no provision,

except for effective date, not derived from a law

approved prior to January 3, 1939. Preface to the

Internal Revenue Code of 1939 (Emphasis added)

“Where rights secured by the constitution are

involved, there can be no rule making or

legislation which would abrogate them.” Miranda

v. Arizona, 384 U.S. 436 (1966)

The Internal Revenue Service (IRS) has issued

a summons in an effort to conduct a search

concerning Petitioner (hereinafter referred to in the

first person), citing no cause, no connection between

me and the federal government, and no waiver or

other mechanism by which the statutory and/or

Constitutional limits of use summons authority have

been rendered moot in regard to me. The summons

was issued in the face of timely and proper sworn tax

returns establishing-- without reliance on deductions-

- that I owe no outstanding obligation to the

Respondent (hereinafter: IRS) or its client, which

return affidavits stand entirely unchallenged

throughout the proceedings in this case.

I responded to the summons with a timely

petition to quash under the provisions represented at

26 USC 7609 and invoking the jurisdiction of the

District Court as specified at 7609(h), citing the

provisions of law explicitly specified in multiple

rulings of this Honorable Court as being those in

which the IRS summons authority resides, and

furnishing the District Court with evidence

(unchallenged to this day) that I am not among those

about whom such summonses may issue, per the plain

language of those provisions. The District Court

issued a ruling against my petition without any

appearance or filing by the IRS, without proceedings

of any kind, and without explanation.

I appealed to the Sixth Circuit Court, again

citing the language of the applicable law. After being

fully briefed, the Sixth Circuit panel has adopted the

entirely unsupported argument of the IRS that the

body of law explicitly specified by this Honorable

Court as being the relevant authority in this matter

really is not, in fact, the relevant authority. Instead

(per IRS and the Circuit Court), the language of the

1954 Internal Revenue Code constitutes an entire,

substantive replacement of all preceding United

States internal revenue law, and particularly as

regards the summons authority. This despite

repeated rulings by this Honorable Court decades

AFTER the adoption of the 1954 code explicitly

declaring the contrary, particularly as regards the

summons authority; and despite a vast amount of

additional unambiguous authority to the contrary

clearly presented in my filings. Thus, the question:

Did the Appellate Court err in declaring that the 1954

Internal Revenue Code (IRC) constitutes a flat-out

repeal or otherwise substantive replacement of all (or

relevant) federal tax-related statutes?

Having concluded that the 1954 IRC is now

free-standing law, general and permanent in nature,

the Sixth Circuit proceeded to adopt the IRS’s

dependent argument that the unqualified phrase “any

person”, and other infinitely broad language found in

the text of IRC 7602, should (or can) be read literally.

Thus, the Appellate Court declares the IRS free to

conduct a search concerning literally any person; that

its mere curiosity legitimizes its investigation; and

(apparently) that its hope to find “relevant materials”

in the course of such a poking about makes the

materials it hopes to find relevant. (No effort has

been made either by the Appellate Court or the IRS to

meaningfully address that part of this Court’s

“Powell” doctrine concerning certification that the

“information” the IRS hopes to discover the existence

of is not already in its possession. The agent issuing

the summons declares this to be so, but since he has

no evidence to suggest that there IS anything to be

looking for, his certification is an empty tautology,

meant to be glazed-over in the mind of the reader by

the muddled notion that the records in which he

hopes to discover such “information” are themselves

the “information not already in his possession”

referred to by this Court in Powell...)

REASONS THIS PETITION SHOULD BE

GRANTED

1. The Ruling Of The Court Below Works To

Undermine The Express Will Of Congress

As this Court has pointed out over the

centuries, expressing what is certainly one of the most

fundamental of American judicial doctrines,

“When the words of a statute are unambiguous,

the first canon of statutory construction--that

Courts must presume that a legislature says in a

statute what it means and means in a statute what

it says there--is also the last, and judicial inquiry

is “complete.” Connecticut National Bank v.

Germain, 503 U.S. 249 (1992).

The Preliminary Materials section of the

current IRC reveals that the language of section 7602

contained therein which is invoked as the authority

for the summons in question is a re-codification of

section 3614, section 3615 (a), (b) and (c), and section

3632(a)(1) of the Internal Revenue Code of 1939.

This representation of the underlying statutory

authority took its present form in 1954, but was

unchanged in meaning, as is noted by this Court in

United States v. LaSalle National Bank, 437 U.S. 298

(1978):

“Section 7602 derives, assertedly without change

in meaning, from corresponding and similar

provisions in 3614, 3615, and 3654 of the 1939

Code.”, referencing H. R. Rep. No. 1337, 83d

Cong., 2d Sess., A436 (1954); S. Rep. No. 1622,

83d Cong., 2d Sess., 617 (1954).

{[Note: The court's reference to section 3654 of the

1939 Code is now out-of-date with the Code's

current derivation table, which, as observed

above, refers to 3614, 3615 and 3632 (concerning

authority to administer oaths, certify certain

papers and hear testimony in certain cases).

However, 3654, now omitted, simply reflected the

authority given to collectors to supervise,

summon and examine “all officers of internal

revenue" and their books, records, etc. in section

3163 of the Revised Statutes. This same

authority is now reflected in 26 USC 7602(b), per

the Tax Reform Act of 1982.]

Table A of the Appendix to the 1939 code- “Derivation

of Internal Revenue Code” reveals, in turn, the

statutes-at-large which these code sections reflect,

and which remain the current law of the land.

The content of these statutes can be separated

into three categories:

1. Providing appropriate parties with the

authority to administer oaths to witnesses and

take testimony;

2. Specifications as to the classes of persons in

regard to whom summonses and examinations

can be undertaken; and

3. Specifications as to the purposes for which

such summonses and examinations can be

initiated.

As Congress has, in fact, specified the classes of

persons in regard to whom summonses may issue, the

first consideration of the legitimacy of any summons

is whether the person in regard to whom it is issued is

within those classes (and whether the scope of those

classes conforms to the Constitution, of course). Only

if this is established as being the case does the

question then turn to whether the summons has been

issued for an authorized purpose, and other

considerations by which Congress and the courts have

further qualified the exercise of this authority

(including this Court in its ruling in United States v.

Powell, 379 U.S. 48 (1964), a case in which the issue

of whether Powell was within the classes specified in

the statutory summons authority was never raised).

The pertinent words of the statute specifying

the classes in regard to whom summonses may issue

(Section 3173 of the Revised Statutes, as amended in

1919 and re-enacted as the current law in the

Revenue Act of 1926) could not be more clear--

anyone can understand them without difficulty:

"... And if any person, on being notified or required

as aforesaid, shall refuse or neglect to render such

list or return within the time required as

aforesaid, or whenever any person who is required

to deliver a monthly or other return of objects

subject to tax fails to do so at the time required, or

delivers any return which, in the opinion of the

collector, is erroneous, false or fraudulent, or

contains any undervaluation or understatement,

or refuses to allow any regularly authorized

Government officer to examine the books of such

person, firm, or corporation, it shall be lawful for

the collector to summon such person...";

The draftsmen of the 1939 IRC, in representing

this specification, did so with refreshing clarity:

“SEC. 3615. SUMMONS FROM COLLECTOR

TO PRODUCE BOOKS AND_ GIVE

TESTIMONY.

(a) GENERAL AUTHORITY.—It shall be lawful

for the collector, subject to the provisions of this

section to summon any person to appear before

him and produce books at a time and place named

in the summons, and to give testimony or answer

interrogatories, under oath, respecting any objects

or income liable to tax or the returns thereof. ...

(b) ACTS CREATING LIABILITY.—Such

summons may be issued—

(1) REFUSAL OR NEGLECT TO COMPLY

WITH NOTICE REQUIRING RETURN.—If any

person, on being notified or required as provided

in section 3611, shall refuse or neglect to render

such list or return within the time required, or

(2) FAILURE TO RENDER RETURN ON

TIME.—Whenever any person who is required to

deliver a monthly or other return of objects subject

to tax fails to do so at the time required, or

(3) ERRONEOUS, FALSE, OR FRAUDULENT

RETURN.—Whenever any person who is requirea

to deliver a monthly or other return of objects

subject to tax delivers any return which, in the

opinion of the collector, is erroneous, false, or

fraudulent, or contains any undervaluation or

understatement, or

(4) REFUSAL TO PERMIT EXAMINATION OF

BOOKS.—Whenever any person who is required to

deliver a monthly or other return of objects subject

to tax refuses to allow any regularly authorized

Government officer to examine his books.”

Clearly, summonses can only issue in regard to

those who have refused or neglected to render a

timely list or return upon receiving notification of a

requirement to do so, or those required to deliver a

monthly or other return of objects subject to tax-- who

are, as a class, involved in a particular relationship

with the federal government such as to make them

properly subject to this sort of arbitrary investigation.

Clearly, the summons authority cannot be invoked to

authorize a general search, without existing and

evidenced cause, simply to “ascertain the correctness”

of a tax return that any American has been obliged or

induced to file by the workings of some other

statutory provision or structure.

Senator Danaher: "Of course, you withhold not

only from taxpayers but nontaxpayers."

Mr. Hardy: "Yes."

Senator Danaher: "J have only one other thought

on that point. In the event of withholding from the

owner of stock and no taxes due ultimately, where

does he get his refund?"

Mr. Friedman: "You're thinking of a corporation or

an individual?"

Senator Danaher: "J am talking about an

individual."

Mr. Friedman: "An individual will file an inc me

tax return, and that income tax return will

constitute an automatic claim for refund.”

(From the hearing on withholding provisions of

1942 Revenue Act before the subcommittee of

Committee on Finance, US Senate, during the

77th Congress, Second Session, August 21, 22,

1942. Connecticut Senator John A. Danaher and

testifying witnesses Charles O. Hardy, Brookings

Institution, and Milton Friedman, Treasury

Department Division of Tax Research.)

Even more clearly, the power to summon and search

cannot be properly deployed simply in order to

determine whether a return should have been made

by any person. Were it otherwise, the authority

would be in plain conflict with the Fourth

Amendment:

“Where rights secured by the constitution are

involved, there can be no rule making or

legislation which would abrogate them.” Miranda

v. Arizona, 384 U.S. 436 (1966);

and with many other statutory elements of the tax

structure, as will be discussed below.

Finally, it is self-evident that the scope of the

summons authority involved here can only concern

itself with books and records explicitly related to

“income” (that is, books and records concerning

activities taxable by Congress). Whether any given

books and records qualify in this regard can only be

based on pre-existing evidence of the related conduct

of such taxable activity. Those required to deliver a

monthly or other return of objects subject to tax are

inherently engaged in taxable conduct, and evidence

of such conduct (e.g. by way of “information returns”)

is a preliminary element to being “notified or

required” to file a return in other cases (making these

the “persons who may be liable for taxes” referred to

by this Court in United States v. Bisceglia, 420 U-S.

141 (1975) when discussing those with whom the

summons authority is concerned). In the absence of

such qualifying elements, any summons and search

would be in bad faith on its face. »

2. Not A Single Authority Supports The Lower

Court’s Conclusion That §7602 Of The 1954 IRC

Is Itself, Or Accurately Reflects, The Summons

Statute

That the unambiguous words of section 3173 of

the Revised Statutes express the ongoing will of

Congress could not be more clear. These words have

been the law for more than 130 years, re-enacted over

and over again in various subsequent revenue acts.

Unable to evade the clear meaning of these

words, the IRS has argued that they no longer exist,

which argument the Appellate Court ultimately

adopted. In a nutshell, this argument proposes that

the condensed summary of the statutes presented in

the current “code”-- in which certain specifications in

those statutes are, for the sake of the brevity and

simplification which is the chief purpose of the

codification effort, omitted-- is now itself the actual

law. The IRS thus proposes that the “any person”

used in the ‘anguage of section 7602 of the code:

(a) Authority to summon, etc.

For the purpose of ascertaining the correctness of

any return, making a return where none has been

made, determining the liability of any person for

any internal revenue tax or the liability at law or

in equity of any transferee or fiduciary of any

person in respect of any internal revenue tax, or

collecting any such liability, the Secretary is

authorized—

(by which is actually meant “any person within the

scope of this authority as specified by the underlying

statutes”) means literally any person, and that the IRS

thus has an effectively unlimited power to poke

through the papers and effects of whomever it

chooses, even where no relationship between the .

target and the government exists, nor any evidenced

cause.

Unable to muster a shred of actual authority to

support its false contention, the IRS resorted to a

carefully opaque reference to a D.C. Circuit Court

case in its appellate brief, in such a manner as to

imply that the D.C. Circuit Court had issued a ruling

in support of its contention about the law. The Sixth

Circuit Court explicitly relies upon this unquoted case

citation as the grounds for its adoption of the

argument concerning the supremacy of the vague and

limitless language of 7602 and its ruling in the instant

case. However, this D.C. Circuit case-- the very best

the IRS could come up with to stand against the

straightforward words of the law I have presented in

this matter-- is entirely inapposite, and even goes so

far as to contradict the IRS’s contentions, when

actually read.

The case-- never actually quoted by the IRS in

its brief-- is Tax Analysts v. IRS, 214 F.3d 179 (D.C.

Cir. 2000). The IRS’s contention about the law was

never an issue in thi -- it was neither liti

nor considered by the court. The only means by

which this case can be distinguished in this respect

from one chosen completely at random is a single

sentence in a footnote declaring, without any support

or explanation, that “The IRC has been enacted as a

separate code and is therefore positive law”.

However, not only does the fact that the IRC

“has been. enacted as a separate code” NOT

automatically mean that it is therefore “positive law”

in the sense of being legal evidence of the laws general

and permanent (as would appear to be being

incorrectly taken for granted by the writer of this

footnote), but the writer goes on to contradict his own

casual assertion in the very next sentence: “Though

both the Statutes at Large and the IRC could be said

could be said to be authoritative here...”; and then

makes clear that the subject is not being seriously

considered in the case, in any event: “The difference is

irrelevant to the outcome of the case...”

Again, this irrelevant, non-precedential case is

the only thing the IRS could present in its effort to

overcome the actual provisions of the law pertinent to

the underlying issue in this case. This is because

what I have pointed out about the law is simply

correct, and the ruling by the Sixth Circuit to the

contrary is simply in error.

3. ALL Relevant Authority Declares The Lower

Court’s Decision To Be In Error, Including

Rulings By This Court And The Fourth Circuit

The decision of the Sixth Circuit Court in this

case is plainly and squarely at odds with repeated

explicit (and accurate) holdings by the this Court that

the specifications concerning about whom a summons

can issue under 26 USC 7602 ARE NOT “derived

from”, nor are to be measured against, the infinitely

expansive language of section 7602 of the 1954 code

but are those expressed in the IRC of 1939 and

presented in detail in my petition and my briefs to the

lower Court. This Court declares in Donaldson v.

United States, 400 U.S. 517 (1971):

“...7602] has its ascertainable roots in the 1939

Code’s 3614 and, also, 3615 (a)-(c)...”;

again, and more forcefully, in United States v. LaSalle

National Bank, 437 U.S. 298 (1978):

“The legislative history of the Code supports the

conclusion that Congress intended to design a

system with interrelated criminal and civil

elements. Section 7602 derives, assertedly without

change in meaning, from corresponding and

similar provisions in 3614, 3615, and 3654 of the

1939 Code.”, referencing H. R. Rep. No. 1337, 83d

Cong., 2d Sess., A436 (1954); S. Rep. No. 1622,

83d Cong., 2d Sess., 617 (1954);

and, in a more general, but relevant, observation:

“absent [substantive] comment it is generally

held that a change during codification is not

intended to alter the statute’s scope. See Muniz v.

Hoffman, 422 U.S. 454, 467-474 (1975).” Walters

v. Nat. Assn. of Radiation Survivors, 473 U.S. 305

(1985).

That is, the language of 7602 is irrelevant-- it is the

language found in the 1939 code _ that

accurately represents the relevant law.

The IRS says this Court is simply wrong (as

does the Court below). The IRS argues that the

current version of the code (whether denominated as

the ‘IRC of 1986’, ‘26 USC’ or otherwise) is some kind

of distinct, subordinate derivative of the 1954 code,

and that the 1954 code is to be taken as the source of

its authority. THIS IS SIMPLY NOT TRUE.

The language of 26 USC (and/or that of the IRC

of 1986) cannot be (and is not) “derived from” the

infinitely-expansive-language of section 7602 of the

1954 code, BECAUSE THEY ARE ONE AND THE

SAME, and that language has always been nothing

more than a distorted reflection of its actual

underlying authority.

The current version of the code (however

denominated) IS, and always has been, the IRC of

1954, which was simply “redesignated” as the “IRC of

1986” by Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100

Stat. 2095:

ACT AUG. 16, 1954, CH. 736, 68A STAT. 3

The following tables have been prepared as aids in

comparing provisions of the Internal Revenue

Code of 1954 (redesignated the Internal Revenue

Code of 1986 by Pub. L. 99-514, Sec. 2, Oct. 22,

1986, 100 Stat. 2095) with provisions of the

Internal Revenue Code of 1939. (From the

headnote of the “Preliminary Materials” section

of 26 USC.)

Such “redesignation” made no change in the

legal status of the code-- neither distinguishing the

“current” nominal code from the 1954 version, nor

elevating the 1954 version in any fashion. As is stated

at 26 USC 7701(a)(29):

(29) Internal Revenue Code

The term “Internal Revenue Code of 1986” means

this title, and the term “Internal Revenue Code of

1939” means the Internal Revenue Code enacted

February 10, 1939, as amended. (Emphasis

added.)

Since the “Internal Revenue Code of 1986” is, in fact,

nothing but the ‘Internal Revenue Code of 1954” with

a new name, this means that 26 USC itself IS the

“Internal Revenue Code of 1954”. The IRC of 1954 is

not the “statute” from which language in 26 USC is

derived or to which it is to be compared for its

authority-- the two are one and the same.

Thus, when Congress explicitly declares 26

USC to NOT be enacted as “positive law”, as in:

“Certain titles of the Code have been enacted into

positive law, and pursuant to section 204 of title 1

of the Code, the text of those titles is legal evidence

of the law contained in those titles. The other titles

of the Code are prima facie evidence of the laws

contained in those titles. The following titles of the

Code have been enacted into positive law: 1, 3, 4, 5,

9, 10, 11, 13, 14, 17, 18, 23, 28, 31, 32, 35, 36, 37,

38, 39, 40, 44, 46, and 49.” US House of

Representatives Office of the Law Revision

Counsel,

it is declaring the IRC of 1954 to NOT be enacted as

“positive law”. When Congress and this Court declare

that titles not enacted as positive law are merely

“prima facie” evidence of the law, and subordinate to

underlying statute:

“By 1 U.S.C. 54(a), 1 U.S.C.A. 54(a) the Code

establishes ‘prima facie’ the laws of the United

States. But the very meaning of ‘prima facie’ is

that the Code cannot prevail over the Statutes at

Large when the two are inconsistent.” Stephan v.

United States, 319 U.S. 423 (1943) (The section 1

USC 54(a) to which the court refers is now 1 USC

204(a)),

they are declaring the IRC of 1954 to be mere “prima

facie” evidence of, and to be subordinate to, OTHER

LANGUAGE-- that being the language of the

underlying statutes-at-large, which remain the

relevant law.

This is why the Joint Committee on Taxation’s

1992 ‘DERIVATIONS OF CODE SECTIONS’ report

does not even mention the ‘1986’ code. With the sole

exception of the occasional post-1954 enactment, the

1986 version is entirely and inherently represented by

the tables showing the derivation data FOR THE

1954 CODE (which explicitly show section 7602 as

being derived from the 1939 code). The same plain

fact is expressed in the current presentation of 26

USC, in the derivation tables of which the IRC of

1954 is not referenced at all. Instead, just as in the

Joint Committee’s report, the current code references

its derivations-- particularly that of 7602-- as being

directly from the 1939 code (which, in turn, shows its

derivations from the Statutes at Large).

THE PLAIN, INCONTROVERTIBLE FACT IS

THAT THE 1954 CODE LANGUAGE HAS ALWAYS

BEEN, AND REMAINS TO THIS DAY, MERE

PRIMA FACIE EVIDENCE OF UNDERLYING, FAR

MORE RESTRICTIVE STATUTORY LANGUAGE

TO WHICH THE DISTORTED EXPRESSIONS IN

7602 ARE SUBORDINATE.

The ruling of the Circuit Court, which

embraces the IRS’s inane, self-serving proposition

that the language of the 1954 code section 7602 is to

be taken as the law regarding the summons authority

(since it otherwise would have acknowledged the

limitations laid out in the actual law), is in error.

That proposition is plainly wrong, and plainly in

conflict with the Constitution, this Honorable Court

and Congress on the subject.

It is also plainly ludicrous to suggest that

Congress had embraced the restrictive summons

protocol expressed in the 1939 code for more than 92

years, and then suddenly chucked it all and went feral

in 1954. This Court agrees that this cannot be read

into the language found in the IRC of 1954 regardless

of the status of the code:

As we said in United States v. Ryder, 110 U.S.

729, 740 (1884): “It will not be inferred that the

legislature, in revising and consolidating the laws,

intended to change their policy, unless such

intention be clearly expressed.” (Citations omitted).

Fulman v. United States, 434 U.S. 528 (1978).)

Thus, even if the absurd notion that on August

16, 1954, Congress, in one fell swoop, enacted the 3.5

million words of 26 USC as “positive law” WERE

true, it would make no difference to the limits of the

real meaning of the language of 7602, in light of this

Court’s previously noted observations in US v.

LaSalle, Donaldson v. US, and Walters v. Nat. Assn.

of Radiation Survivors. As the Fourth Circuit

recently put it even more plainly and forcefully in

Washington-Dulles Transp., Ltd. v. Metropolitan

Washington Airports Authority, 263 F.3d 371 4" Cir.

(2001):

“(I)f there is a conflict between the original

Congressional enactment contained in the Statutes

at Large and a codification that has been enacted

into positive law, the Statutes at Large control

when (1) the meaning of the original enactment

was “clear and quite different from the meaning . .

. ascribel[d] to the codified law,” and (2) “the

revisers expressly stated that changes in language

resulting from the codification were to have no

substantive effect.” Cass v. United States, 417 U.S.

72, 82 (1974); see Welden, 377 U.S. at 98 n.4; see

also Finley v. United States, 490 U.S. 545, 554

(1989)”

4. If The Law Really DID Mean To Extend The

Summons Authority As Ruled By The Lower

Court, It Would Be Void Under The Fourth

Amendment

This case concerns my petition to the federal

courts to quash a plainly improper IRS summons,

issued without any evidence of cause whatever. The

sole “evidentiary” basis for this severe intrusion into

my personal privacy consists of an empty

“declaration” by an IRS Criminal Investigation

Division agent.

The agent’s “declaration” expresses nothing

more of substance than that he wishes to conduct his

search and seizure in order to ascertain whether or

not I have complied with certain provisions of law.

He makes no effort to substantiate-- or even plainly

allege-- that I have not done so, or am even subject to

these provisions.

Further, and even if the agent’s declaration

DID allege that I am subject to such provisions, it is

self-evident that a mere interest’ in

investigating whether or not any person has

complied with any law, in the absence of

demonstrated cause, cannot serve as a lawfully

sufficient pretext or justification for evading

the provisions of the Fourth Amendment:

“The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.”

Fourth Article of Amendment to the Constitution

of the United States of America

Precursors to the Amendment helpfully clarify

its intent. For instance, the Virginia Declaration of

Rights, expressed the same purpose in 1776 as

follows:

“That general warrants, whereby any officer or

messenger may be commanded to search

suspected places without evidence of a fact

committed, or to seize any person or persons not

named, or whose offence is not particularly

described and supported by evidence, are grievous

and oppressive, and ought not to be granted”

(emphasis added);

The Declaration of Rights in the Pennsylvania

Constitution of 1776 put it this way:

“That the people have a right to hold themselves,

their houses, papers, and possessions free from

search and seizure, and therefore warrants

without oaths or affirmations first made,

affording a sufficient foundation for them,

and whereby any officer or messenger may

be commanded or required to search

suspected places, or to seize any person or

persons, his or their property, not particularly

described, are contrary to that right, and ought not

to be granted” (emphasis added).

Clearly, a summons of the sort involved in this case,

without any evidenced cause or waiver behind it, is

precisely what is prohibited by the Fourth

Amendment.

Further still, and perhaps more to the

immediate point, the statute providing for the lawful

application of the IRS summons authority plainly sets

limits as to those about whom such summonses can

issue, without which that authority would clearly be

out of harmony with the Amendment. .

These simple, straightforward legal realities

are not overcome by any mere declaration, even one

claiming that if what is hoped to be found among the

larger body of records the declarant wishes to search

through actually exists, it is not already in the

possession of the seeker; the declarant’s saintliness; a

noble purpose; or anything else. At minimum, a

demonstrated cause of a probative nature must exist

in the record. THIS is the very least standard by

which the “properness of purpose” of a summons

must be measured, or else the Fourth Amendment

means nothing. (A summons issuing without such

cause also makes meaningless the language of 26 USC

7605(b):

(b) Restrictions on examination of taxpayer

No taxpayer shall be subjected to unnecessary

examination or investigations,...)

There are two possible circumstances in which

the Fourth Amendment would not apply, relevant to

this summons. One would be if I had claimed

deductions on my sworn tax returns, based on

something for which related records might exist (and

which had a material effect on my tax liability). Were

this so, the matter would not be a Fourth Amendment

search at all; the burdens of proof would shift to me;

and, in any event, “cause” for the presumptive

existence of the records would be established.

However, no such deductions were claimed,

and the IRS has made no allegation to the

contrary.

The other exception would be if I had

relevantly waived my Fourth Amendment rights, by

virtue of certain kinds of connections with the federal

government, or otherwise. I have not waived those

rights, and the IRS has made no allegation to

the contrary.

It is in light of the foregoing legal realities that

Congress has properly and unambiguously confined

the summons authority by the statutory provisions

laid out in complete detail in my petition to quash and

my discussion above. Any effort to apply that

authority otherwise, such as to reach “any person”

without probable cause, waiver (by federal connection

or otherwise), or in regard to a deduction claim, would

be unconstitutional on its face. Not only would such

authority represent a gross and unwarranted

violation of privacy, but its sole application could only

be a criminal investigation-- there would be no

legitimate “administrative” or accounting purpose.

Absent challengeable deductions, the executive is

explicitly commanded by statute to accept annual tax

returns as filed:

“Provided, that any party, in his or her own

behalf... ... shall be permitted to declare, under

oath or affirmation, the form and manner of

which shall be prescribed by the commissioner of

Internal Revenue,... ... the amount of his or her

annual income, or the amount held in trust, as

aforesaid, liable to be assessed, as aforesaid, and

the same so declared shall be received as the

sum upon which duties are to be assessed

and collected.” — Section 93 Revenue Act of

1862 (Emphasis added.)

This statutory provision finds expression and

support in the provisions of section 3173 of the

Revised Statutes laid out in my petition and briefs, as

well as elsewhere throughout the overall body of

internal revenue law. Some pertinent examples of

this can be seen in current “code” reflections of the

law, such as:

26 USC § 6201

(a) Authority of Secretary

The Secretary is authorized and required to make

the inquiries, determinations, and assessments of

all taxes... ... Such authority shall extend to and

include the following:

(1) Taxes shown on return

The Secretary shall assess all taxes determined by

the taxpayer or by the Secretary as to which

returns or lists are made under this title,

26 CFR 301.6203-1 Method of assessment

... The amount of the assessment shall, in the case

of a tax shown on a return by the taxpayer, be the

amount so shown...,

and:

Sec. 6020. - Returns prepared for or executed by

Secretary

(b) Execution of return by Secretary

(1) Authority of Secretary to execute return

If any person fails to make any return required by

any internal revenue law or regulation made

thereunder at the time prescribed therefor, or

makes, willfully or otherwise, a false or fraudulent

return, the Secretary shall make such return from

his own knowledge and from such information as

he can obtain through testimony or otherwise.

with the limits of the latter 6020(b) authority-- the

sole authority in regard to which any kind of

“administrative” investigation is relevant-- clarified

by the following portion of the Internal Revenue

Manual:

5.1.11.6.8 (03-01-2007)

IRC 6020(b) Authority

1. The following returns may be prepared, signed

and executed by revenue officers under the

authority of IRC 6020(b):

(The list that follows includes only Forms 940,

941, 943, 944, 720, 2290, CT-1 and 1065).

Annual return forms are not on this list,

because the authority of the Secretary to prepare or

administratively manhandle returns upon which the

assessment of taxes can be based DOES NOT

EXTEND TO THOSE WHO ARE NOT “required to

deliver a monthly or other return of objects subject to

tax”. Thus, these expressions of the law PRECISELY

REFLECT AND HARMONIZE WITH the

specifications of section 93 of the Revenue Act of 1862

quoted above, and those of the summons authority of

R.S. 3173 as amended in 1919 and re-enacted as the

current law in the revenue act of 1926 (and clearly re-

iterated in sec. 3615 of the IRC of 1939, as extensively

discussed in my briefs to this Court) which I have

invoked:

« . And if any person, on being notified or

required as aforesaid, shall refuse or neglect to

render such list or return within the time required

as aforesaid, or whenever any person who is

"required to deliver a monthly or other return of

objects subject to tax fails to do so at the time

required, or delivers any return which, in the

opinion of the collector, is erroneous, false or

fraudulent, or contains any undervaluation or

understatement, or refuses to allow any regularly

authorized Government officer to examine the

books of such person, firm, or corporation, it shall

be lawful for the collector to summon such

person...”;

(By the same token, it is clear that if read literally as

desired by the IRS, the language of 7602(a) DOES

NOT HARMONIZE with these extensive expressions

of the law.)

Consequently, the ONLY actual purpose for

which the executive could seek to snuffle through

papers and effects related to annual filings is in hopes

of discovering evidence to support a_ perjury

prosecution, that being the one mechanism provided

in law for incentivizing accuracy and honesty in the

execution of such returns. The executive cannot

bypass the proscriptions and prescriptions of the

Fourth Amendment by asserting that its interest is

merely an “administrative” interest in the content of

returns over which it actually has no “administrative”

latitude; nor can it credibly maintain that its purpose

is not the pursuit of a criminal charge when a

criminal charge is the only actual interest it could

have in the matter. The fact that no Justice

Department referral has (yet) been made prior to

conducting a warrantless search (by the “Criminal

Investigation” division of the IRS, no less) would

clearly be irrelevant in such a case, and underscores

the fact that the loose criteria for the propriety of a

summons comprising the “Powell” doctrine applies

ONLY in regard to those in the specialized class of

filers of “monthly or other return of objects subject to

tax” or those who have left unanswered the

allegations underlying notification of a requirement to

file.

Thus, the Fourth Amendment to the United

States Constitution, which was explicitly invoked both

in my petition to the District Court and my briefs to

the appellate court, is unmistakably implicated in this

case, and unmistakably stands against the validity of

the summons involved. I have never waived any

of my rights, and I insist that they be respected.

Neither the IRS in this case nor the Court

below have suggested that I have waived my rights

(despite the IRS incessantly, gratuitously, and with no

supporting evidence referring to me as “taxpayer”

throughout its brief...). Nor have either introduced

into the record of these proceedings any evidence of

any contractual nexus between the government and

me, or any other pretext for suggesting that this

matter is somehow outside the ambit of the

Constitution. In fact, there is no such nexus or other

colorable pretext, as is made clear by way of the

eee

affidavit filed with my initial petition to the District

Court, and as is re-iterated now; nor is any such

nexus or pretext to be presumed, both as a plain

matter of due process, and per Rule 301 of the Federal

Rules of Evidence.

In light of all of the foregoing, it is obvious that

the summons authority simply cannot extend to “any

person”, as the IRS and the Court below would have

it, without being inherently unconstitutional. The

summons authority can only encompass certain

persons, and under certain circumstances, if it is to

remain lawful-- and in fact, it does, as I have made

clear in my petition to the district court and my briefs

to the Sixth Circuit Court.

The IRS has vainly struggled to evade this

point by suggesting a distinction between “third-

party” records and “first-party” records. This is

nothing but an effort at misdirection however, for

7602 is purported to reflect authority relating to

BOTH VARIETIES-- it is the language of 7602 that

the IRS relies upon to conduct FIRST-PARTY fishing

expeditions, as well as the third-party variety, using

the same idiotic “any person” argument the IRS

offers in this case. If the words “any person” in 7602

can’t literally mean “any person” in regard to a first-

party summons (and they obviously cannot), the same

words can’t literally mean “any person” in regard to

ANY summons.

The summons in this case, and the IRS’s

arguments, explicitly invoke the law reflected at 7602,

and no other. If the IRS wished to assert that it needs

no authorization to scrutinize third-party records, or

has such authorization from another statute, I

suppose it could have attempted that argument. But

it did not.

CONCLUSION

The ruling issued in this case is the

consequence of a deliberate fraud perpetrated on the

Court below, is squarely in conflict with multiple

explicit rulings by this Honorable Court, the Fourth

Circuit Court, acts of Congress and the Fourth

Amendment; and is poisonously corrosive of the rule

of law. Further, the contention this ruling embraces

is disharmonious with the body of related internal

revenue law; is entirely and plainly contradicted by

the language of the relevant statutes-at-large

acknowledged by even the IRS in this case to have

stood undisturbed as the law on this subject for more

than nine decades before the pretext on which this

contention hangs appeared on the scene; and

represents an effort to secure the cooperation of the

judicial branch in the exercise of a power which is

inherently arbitrary and capricious.

Petition for Writ of Certiorari should be granted.

Respectfully submitted

Pia Diop

Peter Eric Hendrickson

Proceeding on his own behalf “

232 Oriole Rd.

Commerce Twp, Michigan 48382

(248) 366-6858

APPENDIX

Decisions of the Courts below:

Order of the District Court

ORDER DENYING MOTION TO QUASH

SUBPOENA

At a session of said Court, held in the U.S.

Courthouse, Detroit, Michigan on June 2. 2006

PRESENT: Honorable Gerald E. Rosen United

States District Judge

This matter is presently before the Court on the

"Petition to Quash Summons" filed by Petitioner

Peter E. Hendrickson in which Hendrickson seeks to

quash a Summons issued by the Internal Revenue

Service (the "IRS") directing LaSalle National Bank

("LaSalle") to produce for examination records for the

period January 1, 2000 through December 31, 2004

relating to Hendrickson and/or Lost Horizons Corp., a

company owned by Hendrickson.’ The stated purpose

of the Summons is for a criminal investigation

concerning “the tax liability or the collection of a tax

liability or for a purpose of inquiring into any offense

connected with the administration or enforcement of

the internal revenue laws concerning the person

identified above [Peter E. Hendrickson] for the period

shown (January 1, 2000 through December 31, 2004)."

Having reviewed and considered Hendrickson's

Petition and the attachments thereto, the Court finds

that Petitioner has failed to establish any legally

cognizable grounds for the relief requested.

Therefore,

IT IS HEREBY ORDERED that Peter E.

Hendrickson's Petition to Quash Summons is

DENIED.

‘ It is unclear whether the LaSalle records sought

relate only to one or both of these two parties as

Petitioner did not provide the Court with the list of

requested records which was apparently attached to

the Summons. (Hendrickson attached to his Petition

a copy of the Summons which states with regard to

the requested records that it relates to "the person

identified above," i.e., Peter E. Hendrickson, but

further references an attached list as it also states

"See Attached." The attachment to the Summons was

not provided to the Court.)

Sixth Circuit Order

ORDER Before: RYAN and GRIFFIN, Circuit Judges;

HOOD, Chief District Judge.*

Peter E. Hendrickson appeals a district court

judgment that denied his petition to quash an

Internal Revenue Service summons. This case has

been referred to a panel of the court pursuant to Rule

34(j)(1), Rules of the Sixth Circuit. Upon examination,

this panel unanimously agrees that oral argument is

not needed. Fed. R. App. P. 34(a).

On April 13, 2006, an IRS special agent issued

pursuant to 26 U.S.C. § 7602 a third-party summons

to the LaSalle Bank of Troy, Michigan, for documents

relating to Hendrickson's tax liability. Hendrickson

filed a timely petition to quash the summons

pursuant to 26 U.S.C. § 7609. The district court

denied the petition sua sponte as meritless, and

Hendrickson filed a timely notice of appeal. On

appeal, Hendrickson contends that he and his

company, Lost Horizons, are not persons against

whom Congress has authorized the IRS to issue

summons, essentially because Congress has not

enacted 26 U.S.C. § 7602 into positive law and

because § 7602 conflicts with its underlying

legislation. The government responds that the district

court properly denied Hendrickson's petition.

This court reviews for clear error a district

court's denial of a petition to quash an IRS summons.

See Fortney v. United States, 59 F.3d 117, 119 (9th

Cir. 1995). Under the clearly erroneous standard of

review, "this court must affirm the trial court unless

we are left with the definite and firm conviction that a

mistake has been committed." Alexander v. Local 496,

Laborers' Int'l Union ofN. Am., Ill F.3d 394,402 (6th

Cir. 1999). Here, the district court did not clearly err

in denying Hendrickson's petition.

The IRS is authorized to examine any relevant

documentation and summon any person in possession

of any relevant information or documentation when

conducting a tax investigation. 26 U.S.C. § 7602(a).

The IRS may serve a summons upon a third-party

record keeper such as a bank or other financial

institution in order to obtain financial records or

information regarding a person who is the subject of

an investigation by the IRS. 26 U.S.C. § 7609(a).

When the IRS serves a summons on a third-party

record keeper, the person whose records are the

subject of the summons is entitled to notice that the

summons has been served. Shisler v. United States,

199 F.3d 848, 850 (6th Cir. 1999); Clay v. United

States, 199 F.3d 876, 878 (6th Cir. 1999). A person

who is notified that a summons has been issued to a

third-party record keeper may contest the summons

by filing a petition to quash the summons within

twenty days of the date on which notice of the

summons was "mailed by certified or registered mail

to him by the IRS." Shisler, 199 F.3d at 850; see also

26 U.S.C. § 7609(b)(2)(A); Clay, 199 F.3d at 878. "The

United States district court for the district within

which the person to be summoned resides or is found

shall have jurisdiction to hear and determine" a

petition to quash a summons issued by the IRS to a

third-party record keeper. 26 U.S.C. § 7609(h)(1);

Fortney, 59 F.3d at 119; Deal v. United States, 759

F.2d 442,443-44 (5th Cir. 1985); Masai v. United

States, 745 F.2d 985, 987-88 (5th Cir. 1984). After a

petition is filed, the government ordinarily bears an

initial burden of establishing that: (1) the

investigation is legitimate; (2) the materials are

relevant; (3) the information is not within its

possession; and (4) required administrative

procedures were followed. See United States v. Powell,

379 U.S. 48, 57-58 (1964). However, Hendrickson’ s

petition was not premised on any of these factors, but

rather was premised on a plainly meritless

contention. Accordingly, the district court did not

clearly err in rejecting Hendrickson's petition sua

sponte.

First, at least one court of appeals has

concluded that MHendrickson's contention that

Congress has not enacted Title 26 of the United

States Code into positive law is incorrect. See Tax

Analysts v. IRS, 214 F.3d 179, 182 nl (D.C. Cir.

2000); see also Youngu. IRS, 596 F. Supp. 141, 149

(N.C. Ind. 1984). Moreover, even assuming that the

United States Code constitutes only prima facie

evidence of the law because Congress has not enacted

Title 26 into positive law, see Schmitt v. City of

Detroit, 395 F.3d 327, 330 (6th Cir. 2005), the

government correctly notes that the language of 26

U.S.C. § 7602 does not in fact differ from the Internal

Revenue Code of 1954, § 7602, ch. 736, 68 A Stat.

3,901 -02, in which Congress first enacted § 7602, or

from subsequent amendments to that section. Simply

put, the language of 26 U.S.C. § 7602 is positive law

either by enactment as such by Congress or by

authority of the Statutes at Large. Hendrickson's

contention that the Internal Revenue Code of 1954

did not replace or supercede prior statutory authority

from which the legislation was derived is patently

meritless. Even assuming prior authority was not

superceded, Congress has plainly enacted into positive

law the authority to issue the IRS summons in this

case. Accordingly, Hendrickson's petition is meritless,

and the district court did not plainly err.

For the foregoing reasons, the district court's

judgment is affirmed. See Rule 34(j)(2)(C), Rules of

the Sixth Circuit.

ENTERED BY ORDER OF THE COURT

Sixth Circuit En Banc Denial

No. 06-1870

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

AUG 0 8 2007

LEONARD GREEN, Clerk

PETER E. HENDRICKSON,

Petitioner-Appellant,

UNITED STATES OF AMERICA,

Respondent-Appellee.

BEFORE: RYAN and GRIFFIN, Circuit Judges; and

HOOD, District Judge.

The court having received a petition for

rehearing en bane, and the petition having been

circulated not only to the original panel members but

also to all other active judges of this court, and no

judge of this court having requested a vote on the

suggestion for rehearing en bane, the petition for

rehearing has been referred to the original panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision of the case. Accordingly, the

petition is denied.

ENTERED BY ORDER OF THE COURT

1 USC 204

“In all courts, tribunals, and public offices of the

United States, at home or abroad, of the District of

Columbia, and of each State, Territory, or insular

possession of the United States—

(a) United States Code.— The matter set forth in the

edition of the Code of Laws of the United States

current at any time shall, together with the then

current supplement, if any, establish prima facie the

laws of the United States, general and permanent in

their nature, in force on the day preceding the

commencement of the session following the last session

the legislation of which is included: Provided,

however, That whenever titles of such Code shall have

been enacted into positive law the text thereof shall be

legal evidence of the laws therein contained, in all the

courts of the United States, the several States, and the

Territories and insular possessions of the United

States.”

26 USC 7602

(a) Authority to summon, etc.

For the purpose of ascertaining the correctness of any

return, making a return where none has been made,

determining the liability of any person for any internal

revenue tax or the liability at law or in equity of any

transferee or fiduciary of any person in respect of any

internal revenue tax, or collecting any such liability,

the Secretary is authorized—

(1) To examine any books, papers, records, or other

data which may be relevant or material to such

inquiry;

(2) To summon the person liable for tax or required to

perform the act, or any officer or employee of such

person, or any person having possession, custody, or

care of books of account containing entries relating to

the business of the person liable for tax or required to

perform the act, or any other person the Secretary may

deem proper, to appear before the Secretary at a time

and place named in the summons and to produce such

books, papers, records, or other data, and to give such

testimony, under oath, as may be relevant or material

to such inquiry; and

(3) To take such testimony of the person concerned,

under oath, as may be relevant or material to such

inquiry.

26 USC 7605

(b) Restrictions on examination of taxpayer

No taxpayer shall be subjected to unnecessary

examination or investigations, and only one inspection

of a taxpayer's books of account shall be made for each

taxable year unless the taxpayer requests otherwise or

unless the Secretary, after investigation, notifies the

taxpayer in writing that an additional inspection is

necessary.

Preface to the Internal Revenue Code of 1939

“The interne: revenue title, which comprises all of the

Code except the preliminary sections relating to its

enactment, is intended to contain all the United States

statutes of a general and permanent nature relating

exclusively to internal revenue, in force on January 2,

1939; also such of the temporary statutes of that

description as relate to taxes the occasion of which may

arise after the enactment of the Code. These statutes

are codified without substantive change and with only

such change of form as is required by arrangement

and consolidation. The title contains no provision,

except for effective date, not derived from a law

approved prior to January 3, 1939.

The derivation of the title, in its textual sequence, is

shown in the appendix, part I, table A. Conversely, the

placement of the statutes in the title, cited in their

chronological order, is shown in table B. The Revised

Statutes of the United States and the Statutes

at Large of the United States are the sources of

the law codified. The Revised Statutes cover the

period ended December 1, 1873. The Statutes at Large

codified cover the period following December 1, 1873,

and are published in the 35 volumes numbered 18 to

52, inclusive. The separate enactments carried into the

internal revenue title, wholly or in part, from the

Statutes at Large are 143 in number, exclusive of 93

statutes involving express amendment, reenactment, or

repeal. The 277 Revised Statutes sections codified were

derived from 21 basic statutes. The whole body of

internal revenue law in effect on January 2, 1939,

therefore, has its ultimate origin in 164 separate

enactments of Congress. The earliest of these was

approved July 1, 1862; the latest, June 16, 1938."

(emphasis added)

Tax Analysts v. IRS, 214 F.3d 179 (D.C. Cir.

2000) FN1. All editions of the United States Code

since 1970 have actually read "any paper" instead of

"any papers" as we set forth above. See 26 U.S.C. §

6104 (1970); see also United States Code editions of

1976, 1982, 1988, and 1994. However, the original

language “any papers" was inserted into $ 6104 in

1958, see Technical Amendments Act of 1958, Pub.L.

No. 85-866, § 75(a), 72 Stat. 1606, 1660-61 (1958), and

appeared in the 1958 and 1964 editions of the United

States Code. The United States Statutes at Large are

"legal evidence" of the law, 1 U.S.C. § 112 (1994),

whereas the titles of the United States Code only serve

as "prima facie" evidence of the law unless they are

enacted as “positive law," in which case they too serve

as legal evidence of the laws. 1 U.S.C. § 204(a) (1994);

see also Stephan v. United States, 319 U.S. 423, 426,

63 S.Ct. 1135, 87 L.Ed. 1490 (1943) (per curiam)

(Statutes at Large prevail over prima facie portions of

U.S.C.). The I.R.C. has been enacted as a separate code

and is therefore positive law. See Internal Revenue

Code of 1954, ch. 736, 68A Stat. 1 (1954). Though both

the Statutes at Large and I.R.C. could be said to be

authoritative here, we use the “any papers” language

of the original enactment appearing in the Statutes at

Large. The difference is irrelevant to the outcome of

the case, and we will thus disregard an apparent

scrivener's error made by a codifier without

congressional direction. Cf. United States v. Welden,

377 U.S. 95, 98 n. 4, 84 S.Ct. 1082, 12 L.Ed.2d 152

(1964) (holding that a "change of arrangement" by a

codifier to a section not enacted as positive law “should

be given no weight").

IRM 5.1.11.6.8 (03-01-2007)

IRC 6020(b) Authority

1. The following returns may be prepared, signed and

executed by revenue officers under the authority of

IRC 6020(b):

A. Form 940, Employer’s Annual _ Federal

Unemployment Tax Return;

B. Form 941, Employer’s Quarterly Federal Tax

Return;

C. Form 943, Employer’s Annual Tax Return for

Agricultural Employees;

D. Form 944, Employer's Annual Federal Tax Return;

E. Form 720, Quarterly Federal Excise Tax Return;

F. Form 2290, Heavy Vehicle Use Tax Return;

G. Form CT-1, Employer’s Annual Railroad

Retirement Tax Return;

H. Form 1065, U.S. Return of Partnership Income.

Excerpt from the derivation tables of the

Preliminary Materials of the IRC of 1986:

7602 3614, 3615/a), (b), (c); 3632(a)(1)

7603 3615(d)

7604(a) 3633(a)

7604(b) 3615(e)

7604(c)

7605(a) 3614, 3615

Code”

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Derivation of Internal Revenue Code

Tapiux A.—Derivation of Internai Revenue Code—Continued

I. BR. C. section

532

Table A of the Appendix to the 1939 code-

(relevant portion)

“Derivation

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BEST AVAILABLE COPY

Page 95 of the 1992 Congressional Joint

Committee on Taxation Report “Derivation of

Code Sections” (relevant portion)

Table 11.—Sources of the 1964 Code—Continued ;

1964 Cede! Dertved Crem 1838 || 1964 Cede} Derived from 1939 || 1964 Code Derived from 1939 '

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Affidavits filed with the Petition to Quash filed

with the District Court

AFFIDAVIT

State of Michigan

County of Oakland

Before the undersigned, an officer duly commissioned by the laws of

Michigan, on this 24th day of April, 2006, personally

appeared Peter E. Hendrickson who, having been first duly

sworn, deposes and says:

I am of competent age and mind.

I am a private-sector, non-federally-connected individual.

I have never refused or neglected to render any federal-tax-related list or

return within the time required upon being notified or required to do so.

I am not, and never have been, required to deliver a monthly or other

return of objects subject to tax.

I am not, and never have been, engaged in the administration or

enforcement of any internal revenue laws.

WS fifhe—

Sworn and subscribed before me this 25.«/ day of (2>../ _, A.0. 2006

} ee KAT RE " SBOE NOTE f

TET ES

- MOTARY PUBLIC, STATE OF te

OF UEERSTON

é << COMMBBSION PIRES tts «201;

ACTING COUNTY OF CA: ano

AFFIDAVIT

State of Michigan

County of Oakland

Before the undersigned, an officer duly commissioned by the laws of

Michigan, on this 24th day of April, 2006, personally

appeared Peter E. Hendrickson who; having been first duly

sworn, deposes and says:

I am of competent age and mind, and am the sole stockholder and officer

of Lost Horizons Corp.

Lost Horizons Corp is a private-sector, non-federally-connected entity.

Lost Horizons Corp has never refused or neglected to render any federal-

tax-related list or return within the time required upon being notified or

required to do so.

Lost Horizons Corp is not, and never has been, required to deliver a

monthly or other return of objects subject to tax.

Lost Horizons Corp is not, and never has been, engaged in the

administration or enforcement of any internal revenue laws.

Weaness “fi aor Lb cand WZ4 [t—

eo Ce Siume Aliant: Pele €. Hendridson

Sworn and subscribed before me this 2/7< day of (/.:/ _, A.D. 2006

Law Zl / eFax | en. sata

t mete | PUBLIC, STATE OF ag

COUNTY OF

MY COMMISSION EXPIRES

‘NOW ARNT OF Chyna

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.