Petition for Writ of Certiorari — Allison v. United States, 122 S. Ct. 12 (2001) (No. 00-1659)
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Suprewe Oowst, U.S, :
© FILED
00165 9 ur 1-200
OFFICE OF THE CLERK
No.
In the Supreme Court
of the United States
RONALD J. ALLISON & MARTHA J. ALLISON,
Petitioners,
vs.
THE UNITED STATES OF AMERICA, et al.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI
TO THE NINTH CIRCUIT COURT OF APPEALS
PETITION FOR WRIT OF CERTIORARI
For the Petitioners:
RONALD J. ALLISON, Pro Se
MARTHA J. ALLISON, Pro Se
390 North 10» Avenue
P.O. Box 661
Forsyth, MT 59327
1-406-356-2904
Soa ane .
i.
QUESTIONS PRESENTED FOR REVIEW
The Petitioners, RONALD J. ALLISON &
MARTHA J. ALLISON, hereby present the following
four questions for the review of the decisions of the
Ninth Circuit Court of Appeals, below, by the United
States Supreme Court:
WHETHER THE DECISION OF THE NINTH
CIRCUIT COURT OF APPEALS, REGARDING THE
CONDUCT OF THE RESPONDENTS, IS CONTRARY TO
AND IN THE DIRECT VIOLATION OF THE RIGHTS
AND PROTECTIONS GRANTED THE PETITIONERS BY
THE 47, 5TH, 7TH AND 10TH ARTICLES IN
AMENDMENT TO THE ORIGINAL ORGANIC
CONSTITUTION OF THE UNITED STATES OF
AMERICA, (U.S.C.A. Constitutional Amendments 4,5,
7 and 10).
WHETHER THE DECISION OF THE NINTH
CIRCUIT COURT OF APPEALS, REGARDING THE
CONDUCT OF THE RESPONDENTS IS CONTRARY TO
AND IN DIRECT CONFLICT WITH RELEVANT
DECISIONS OF THIS COURT, OTHER DECISIONS OF -
THE NINTH CIRCUIT, AND OTHER CIRCUIT COURTS
OF APPEALS DECISIONS.
WHETHER THE DECISION OF THE NINTH
CIRCUIT COURT OF APPEALS, REGARDING THE
UNIQUE STATUS OF THE PETITIONERS, IS
CONTRARY TO AND IN DIRECT CONFLICT WITH
RELEVANT DECISIONS OF THIS COURT, OTHER
DECISIONS OF THE NINTH CIRCUIT COURT, AND
OTHER CIRCUIT COURTS OF APPEALS DECISIONS.
li.
QUESTIONS PRESENTED FOR REVIEW
CONTINUED...
WHETHER THE DECISION OF THE NINTH
CIRCUIT COURT OF APPEALS IS ERRONEOUS WITH
REGARD TO THE CONDUCT OF THE U.S. IRS, THE
U.S. DISTRICT COURT, AND THE MONTANA U.S.
BANKRUPTCY COURT BELOW, AS TO VIOLATIONS
OF STATUTORY LAW AND RELEVANT RULES AND
REGULATIONS.
ili.
PARTIES TO THE PROCEEDING
This case was originally initiated by the
Debtors, RONALD J. ALLISON & MARTHA J. ALLISON,
in the United States Bankruptcy Court for the District
of Montana, as Cause No. 97-12264-7. Asa result of
actions taken by the U.S. Internal Revenue Service and
the Boilermaker-Blacksmith National Pension Trust,
after the dismissal of the Bankruptcy Proceeding, the
Allisons were allowed to reopen their Bankruptcy
Proceeding and were allowed to file a Bankruptcy
Adversarial Proceeding, Case No. 98-00102. The
parties to the action as identified then, and which
remain parties to the action, now, are:
-RONALD J. ALLISON & MARTHA J. ALLISON ;
Plaintiffs,
vs.
UNITED STATES OF AMERICA, U.S. INTERNAL
REVENUE SERVICE, AND THE BOILERMAKER-
BLACKSMITH NATIONAL PENSION TRUST,
Defendants.
iv.
TABLE OF CONTENTS
SECTION: PAGES
QUESTIONS PRESENTED FOR i,
REVIEW:
PARTIES TO THE PROCEEDING: iil.
TABLE OF CONTENTS: iv.
TABLE OF CITED AUTHORITIES: Vv. — Xil.
CONSTITUTIONAL PROVISIONS,
STATUTES, RULES AND
REGULATIONS INVOLVED: Xill. — XV
OPINIONS BELOW: 1,2
JURISDICTION: 2,3
STATEMENT OF THE CASE: 3-10
REASONS FOR GRANTING THE
WRIT: 10-30
CONCLUSION: 30
APPENDIX: (Separate Document).
Vv.
TABLE OF CITED AUTHORITIES
CASE LAW: PAGES:
Beverly Hills Bankcorp v.
Commercial Paper Holders,
753 F.2d 1334 20
Bevins v. Six Unknown Federal
Narcotics Agents, 403 U.S. 338 19
Boethke v. Fluor Engineers and
Constructors, Inc., 713 F.2d 1405 19
Bradley v. Fisher, 13 Wall. 335 27
Brushaber v. Union Pacific
Railway, 240 U.S. 1 16, 19, 26
Bullock v. Latham, 306 F.2d 45 20
Butz v. Economou, 438 U.S. 478 20
Camara v. Municipal Court,
387 U.S. 523 21
CMS Industries v. L.P.S.
International, 643 F.2d 289 20
Cohens v. Virginia, 19 U.S.
(6 Wheat 264) 19
Commissioner v. Shapiro, 424
U.S. 614 19
Economy Plumbing & Heating Co.
v. United States, 470 F.2d 585
19
vi.
TABLE OF CITED AUTHORITIES CONTINUED...
CASE LAW: PAGES:
Edwards v. Cuba RR., 45 S.Ct. 614 29
Eisner v. MaComber, 252 U.S.
189 16, 19
Ellas V. Connett, 908 F.2d 521 20
Enochs v. Williams Packing &
Navigation Co., 370 U.S. 1 21
Flint v. Stone Tracy Co., 220
U.S. 107 26
Flores v. United States, 551
F.2d 1169 21
Fontenot v. Upjohn Co., 780
F.2d 1190 20
Foster & Co. v. Graham, 154
Tenn. 412 26
Fnednash v. Commissioner,
209 F.2d 601 20
Garner v. United States, 424
U.S. 648 19
Garrett v. City & County of
San Francisco, 818 F.2d 1515 20
General Motors Leasing Corp.
v. United States, 429 U.S. 338 19, 21
ee
TABLE OF
CASE LAW: PAGES:
Goodwin v. United States,
935 F.2d 1061 20
Hall v. Hawaii, 791 F.2d 759 21
Hancock v. Montgomery Ward
LTDT, 787 F.2d 1302 20
Horne v. Moody, 146 SW2d S505 18
Idaho Gold Dredging Co. v.
Balderston, 58 ID 692 26
In Re Gerwig, 461 F.Supp. 449 21
In Re Price, 42 F.3d 1068 20
Jack Cole Co. v. McFarland, 27
337 SW2d 453
James v. Gable, 732 F.2d 49 20
Jensen v. IRS, 835 F.2d 196 20
LaFollette v. United States,
176 F.Supp. 192 20
Laing v. United States, 423
U.S. 184 19
Lassoff v. Gray, 266 F.2d 745 20
vill.
TABLE OF CITED AUTHORITIES CONTINUED...
CASE LAW: PAGES:
Liljeberg v. Health Services
Acquisition Corp., 108 S.Ct. 2194 19
L.O.C. Industries, Inc. v. United
States, 42 F.Supp. 265 20
Long v. Rasmussen, 281 F.2d 236 29, 25
Marbury v. Madison, (1803) 15
McPartin v. Commissioner,
653 F.2d 1185 20
Miller v. Standard Nut & Margarine
Co., 284 U.S. 498 16, 19
Neff v. George, 4¢ NE2d 388 18
Patty Precision v. Browne & Sharpe
Mfg., 742 F.2d 1260 20
Peck v. Lowe, 247 U.S. 165 26, 19
People ex rel. Attorney General v.
Naglee, 1 Cal 232 26
Pollock v. Farmers Loan & Trust
Co., 157 U.S. 429 16, 19, 26
Raffaele v. Granger, 196 F.2d 620 22
Reece v. Scoggins, 506 F.2d 967 20
ix.
TABLE OF CITED AUTHORITIES CONTINUED...
CASE LAW: PAGES:
Redfield v. Fisher, 292 OR 814 27
Rodriguez v. United States, 629 r
F.Supp. 333 20 -4
Schering Corp. v. Home Insurance
Co., 717 F.2d 4 20
See v. City of Seattle, 382 U.S. 541 19
Stanton v. Baltic Mining Co., 240
U.S. 103 16, 19
State v. Mellenberger, 95 P.2d 709 18
Thatcher v. Powell, 6 Wheat. 119 19
U.S. v. Bonagur, 294 F. Supp 750 20
U.S. v. Bosurgi, 530 F.2d 1105 20
U.S. v. Condo, 782 F.2d 1502 20, 21, 30
U.S. v. Heffner, 420 F.2d 809 20
U.S. v. Sullivan, 274 U.S. 259 19
U.S. ex. rel. Accardi v. Shaughnessy,
347 U.S. 260 19
U.S. ex. rel. Brooks v. Clifford, 490
F.2d 706 20
™
X.
TABLE OF CITED AUTHORITIES CONTINUED...
CASE LAW: PAGES:
White v. Commissioner of IRS,
157 F.Supp. 679 . 20
Yannacelli v. Nash, 354 F.Supp. 143 20
CONSTITUTIONAL PROVISIONS:
Article I, Section 8, Clause 1 12
Article I, Section 9, Clause 4 12, 16
Article III, Sections 1 and 2 17
Article VI, Clause 2 12
Article in Amendment 4 ne. ki, §3, 34,
Article in Amendment 5 4 11, 13, 14,
27, 28
Article in Amendment 7 10, 13, 14, 28
Article in Amendment 10 10, 13, 14, 28
Amendment 14 14
Amendment 16 14, 15, 16
STATUTORY PROVISIONS:
5 U.S.C. 556(d) 23
18 U.S.C. 1001 28
xi.
TABLE OF CITED AUTHORITIES CONTINUED...
CASE LAW:
PAGES:
STATUTORY PROVISIONS CONTINTUED...
26 U.S.C. 6331
26 U.S.C. 7701(a)(1), (14) and (30)
28 U.S.C. 158(a)
28 U.S.C. 1254(1)
28 U.S.C. 1746 ss
CODE OF FEDERAL REGULATIONS:
26 CFR 301.6331-1a(ii) and (iii)
26 CFR 601.106
27 CFR 70
27 CFR 70.163
MISCELLANEOUS RULES:
Rule 35, Federal Rules of Appellate
Procedure
Rule 40, Federal Rules of Appellate
Procedure
Rule 4007, Federal Bankruptcy
Rules
24
Xil.
TABLE OF CITED AUTHORITIES CONTINUED...
CASE LAW:
PAGES:
MISCELLANEOUS RULES CONTINUED...
Rule 35, Ninth Circuit Rules
Rule 40, Ninth Circuit Rules
OTHER:
Congressional Record-Senate
p. 1568, April 28, 1909
(SUR 25)
pp. 3344-3345, June 16,
1909, Pres. Taft’s Address
to Congress
p. 3377, June 17, 1909
(SJR 39)
p. 3900, June 28, 1909
(SJR 40)
Black’s Law Dictionary, (5'" Edition)
a9
2,9
16
16
16
16
18
1 eS NRO OORT PRO
~ ae AN NR Rr mennennmn:
ay
CON NAL PR
R AND NS INV
Article I, Section 8, Clause 1,
Of the Original Organic Constitution
Of the United States of America
Article I, Section 9, Clause 4
Of the Original Organic Constitution
Of the United States of America
Article III, Sections 1 & 2,
Of the Original Organic Constitution
Of the United States of America
Article VI, Clause 2,
Of the Original Organic Constitution
Of the United States of America
Article in Amendment 4,
Of the Original Organic Constitution
Of the United States of America
(U.S.C.A. Const. Amend. 4)
Article in Amendment 5,
Of the Original Organic Constitution
Of the United States of America
(U.S.C.A. Const. Amend. 5)
Article in Amendment 7,
Of the Original Organic Constitution
Of the United States of America
(U.S.C.A. Const. Amend. 7)
xiv.
CONSTITUTIONAL PROVISIONS, STATUTES,
RULES AND REGULATIONS INVOLVED
CONTINUED...
Article in Amendment 10,
Of the Original Organic Constitution
Of the United States of America
(U.S.C.A. Const. Amend. 10)
Amendment 14 to the Constitution
Of the United States
(U.S.C.A. Const. Amend. 14)
Amendment 16 to the Constitution
Of the United States
(U.S.C.A. Const. Amend. 16)
STATUTORY PROVISIONS:
5 U.S.C. 556(d)
18 U.S.C. 1001
26 U.S.C. 6331
26 U.S.C. 7701(a)(1), (14) and (30)
28 U.S.C. 158(a)
28 U.S.C. 1254(1)
28 U.S.C. 1746
CODE OF FEDERAL REGULATIONS:
26 CFR 301.6331-1a(ii) and (iii)
XV.
CONSTITUTIONAL PROVISIONS, STATUTES,
RULES AND REGULATIONS INVOLVED
CONTINUED...
CODE OF FEDERAL REGULATIONS CONTINUED...
' 26 CFR 601.106
27 CFR 70
27 CFR 70.163
MISCELLANEOUS RULES:
Rule 35, Federal Rules of Appellate
Procedure
Rule 40, Federal Rules of Appellate
Procedure
Rule 4007, Federal Bankruptcy Rules
Rule 35, Ninth Circuit Rules
Rule 40, Ninth Circuit Rules
1
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
Petitioners, RONALD J. ALLISON & MARTHA J.
ALLISON, both appearing Pro Se, in the above-entitled
cause of action, respectfully pray that a WRIT OF
CERTIORARI issue from the United States Supreme
Court, to review the MEMORANDUM of the Ninth
Circuit Court of Appeals, issued by the three judge
panel of Justices Wallace, Fernandez and McKeown,
dated September 26, 2000, as well as the ORDER of
the Ninth Circuit Court of Appeals, three judge panel
of Justices Wallace, Fernandez and McKeown, dated
January 2, 2001, in Ninth Circuit Court Case No. 99-
35949.
OPINIONS BELOW
MEMORANDUM, dated September 26, 2000,
and ORDER, dated January 2, 2001, both issued by
the three judge panel of Justices Wallace, Fernandez
and McKeown, of the Ninth Circuit Court of Appeals,
were both issued as unpublished opinions of the Ninth
Circuit Court of Appeals. Both MEMORANDUM and
ORDER appear in the APPENDIX to this PETITION
FOR WRIT OF CERTIORARI.
Also included in the APPENDIX are ORDERS of
the United States District Court for the District of
Montana, Judge Shanstrom presiding, in the under-
lying cause of action, No. CV-98-181-BLG-JDS, issued
respectively, on April 16, 1999, July 20, 1999, and
February 21, 2001. That case resulted from an appeal
from the United States Bankruptcy Court for the
District of Montana, Judge Peterson presiding, in
Bankruptcy Case No. 97-12264-7 /Adversarial
2
Proceeding Case No. 98-00102. The Bankruptcy
Court’s ORDER AND JUDGMENT, issued on December
4, 1998, also appears in the APPENDIX to this
PETITION FOR WRIT OF CERTIORARI.
In addition, as there is a question of the
timeliness of the appeal from the Bankruptcy Court to
the United States District Court for the District of
Montana, the NOTICE OF REFERRAL OF APPEAL
issued by the Clerk, U.S. Bankruptcy Court for the
District of Montana in Case No. 97-12264-7/
Adversarial Proceeding No. 98-00102, issued on
December 16, 1998, is included in the APPENDIX.
Also included in the APPENDIX to the PETITION
FOR WRIT OF CERTIORARI is a Letter from the Clerk
of the United States Supreme Court, which extending
the time to file PETITION FOR WRIT OF CERTIORARI
until May 2, 2001. Said letter is dated April 4, 2001.
JURISDICTION
The unpublished MEMORANDUM of the three
judge panel of Justices Wallace, Fernandez and
McKeown, of the Ninth Circuit Court of Appeals was
entered September 26, 2000. A timely Petition for
Rehearing, by the three judge panel, was filed,
pursuant to Rule 40, Federal Rules of Appellate
Procedure, October 19, 2000. The Petition for
Rehearing by the Panel was denied January 2, 2001.
Allisons, the Petitioners, filed a Notice of Intent
to Petition for Rehearing, En Banc, January 16, 2001,
pursuant to Rule 35, Federal Rules of Appellate
Procedure and Ninth Circuit Rule 35. On January 30,
2001, the Petition for Rehearing, En Banc, pursuant to
Rule 35 of the Federal Rules of Appellate Procedure
and Ninth Circuit Rule 35, was filed. No response to
3
this Petition for Rehearing, En Banc, has ever been
received from the Ninth Circuit Court of Appeals.
Subsequently, Allisons, made application to
Justice O’Connor of the United States Supreme Court
for an extension of time to file their Petition for Writ of
Certiorari, pursuant to Supreme Court Rules. That
application was made on March 21, 2001.
On April 4, 2001, the Clerk of the United States
Supreme Court issued a letter extending the time in
which to file a Petition for Writ of Certiorari, until May
2, 2001. This PETITION FOR WRIT OF CERTIORARI
was filed prior to the May 2, 2001, the deadline given
in the Clerk’s letter.
The jurisdiction of the United States Supreme
Court is now invoked under Section 28 U.S.C. 1254(1).
STATEMENT OF THE CASE
From a factual standpoint, this case effectively
began with the wrongful and illegal search for and
seizure of Allisons’ real and personal properties by the
United States IRS on March 6, 1997. That day, armed
IRS and ATF agents searched Martha Allison’s solely-
owned real property for personal and business
property of Ronald J. Allison. Upon conclusion of their
search, they seized not only Ronald J. Allison’s
business and personal property, including tools,
equipment, inventory and supplies of his muffler
repair and installation business, but also the
building and land owned solely by Martha J. Allison.
Allisons maintained, from the outset, and
throughout the progression of these nroceedings, that
the actions of IRS against them, personally, and
against their properties, both real and personal in
4
nature, were both wrongful and illegal, including the
fact that the IRS search and seizure was conducted
without a valid Search Warrant or any Court
Summons. Only a Writ of Entry was obtained by the
U.S. Attorney for Montana from U.S. District Judge
Jack Shanstrom.
For several years, IRS had asserted various
claims against only Ronald J. Allison (never Martha J.
Allison), for allegedly delinquent federal income taxes.
On several occasions prior to the illegal search and
seizure on March 6, 1997, Ronald J. Allison had
directly challenged any valid legal authority,
jurisdiction, and venue of IRS over him and his
properties. When Allison did so challenge that
authority, he never received a response. The only IRS
response was to obtain the “Writ of Entry” from Judge
Shanstrom.
Under the alleged authority of the “Writ of
Entry”, and under “color of law’, IRS then searched
real property in Forsyth, Rosebud County, Montana,
which belonged solely to Martha J. Allison, (the
innocent spouse), allegedly looking for any personal
property belonging to Ronald J. Allison. While IRS had
no valid claims or controversies against Martha J.
Allison (and they still do not), they seized not only
personal property of Mr. Allison, but the solely owned
and held real property of Mrs. Allison.
That seizure was allegedly made under an “alter
ego” or “nominee” status designation made by a lone
IRS Agent, Bouldin, the same IRS Agent with whom
Mr. Allison had previously challenged IRS’s legal
authority, jurisdiction, and venue. Mrs.- Allison’s
“status” determination was made directly as the result
of and in retribution for Mr. Allison’s challenges.
i
5
Upon completion of the search, IRS seized Mrs.
Allison’s solely-owned real property and the building
located thereon. IRS also seized Mr. Allison’s muffler
shop equipment, tools, machinery, and inventory. The
total value of the seizure was placed between
$50,000.00 and $100,000.00 by Allisons.
Several months later, IRS, using a substantially
undervalued (and disputed) appraisal process, the real
and personal properties were wrongfully and illegally
sold. IRS used an out-of-county (Yellowstone County,
Montana) sealed bid sale to sell Rosebud County
property. That sale was conducted in violation of IRS
statutory authority and without valid delegation
orders. Later, through Court action, Allisons learned
that the “Notices of Sale” documents issued,
published, and posted were fraudulent and falsified by
IRS Group Manager Yurt. The real property involved
was sold to the City of Forsyth, Montana, for the
minimum bid price. The personal and business
property seized was sold to a Larry Burns also at the
minimum bid price. Those sales do constitute an
illegal conversion of Allisons’ properties.
Due to the illegal actions of IRS during the
search, seizure and sale, Allisons had no alternative
but to seek the protection of the Bankruptcy Court. On
August 26, 1997, Allisons filed a Voluntary Petition for
Bankruptcy with the United States Bankruptcy Court
for the District of Montana, which became Cause No.
97-12264-7 in that Court (See BR-1, Excerpts of
Record, filed in the Ninth Circuit Appeals case).
Allisons notified IRS of their action and sought to have
IRS file claims to determine tax liability. (See BR-5
and BR-8). Allisons again challenged the authority,
jurisdiction, and venue of IRS. (See BR-6). The Court
denied the demand as being improper at that time.
6
(See BR-7) Allisons then did demand the production of
IRS documents (See BR-8) with no response.
On December 16, 1997, the Bankruptcy Court
discharged the joint debtors, Allisons. (See BR-9). It
also, on December 22, 1997, denied the demands for
IRS records. (See BR-10). Allisons sought to require
the Bankruptcy Trustee to take action to deal with IRS
claims. (See BR-11). No action was taken, but a Final
Decree was issued in No. 97-12264-7 on January 26,
1998.
In June of 1998, the Boilermaker-Blacksmith -
National Pension Trust (Trust) notified Allison that
IRS had issued a “Notice of Levy” to them and that
they were withholding his pension checks to satisfy
IRS. Allison responded, providing documentation of
the Court action in the bankruptcy case. (See BR-13).
When the Trust began withholding Mr. Allison’s
monthly pension checks, he sought to reopen the
bankruptcy action (BR-14) which was granted.
Allisons also possessed the Release of Levy, dated
September 3, 1997, sent to the Boilermakers. Case
reopened July 29, 1998.
Next, Allisons filed their Adversarial Proceeding,
Case No. 98-00102, in which they sought damages
and temporary restraining orders and permanent
injunctions for the United States of America, the U.S.
IRS, and the Trust preventing the Trust from with-
holding any further monthly trust payments from Mr.
Allison. That Complaint was filed August 31, 1998.
(See ADVP-1). TROs and Permanent Injunctions were
sought (See ADVP-4), and Allisons sought to proceed
with discovery (See ADVP-7). Allisons also now
possessed another Form 668-D Release of Levy/
Release of Property from Levy, dated September 4,
1998, sent to the Trust, as well as more “Final Notices”
7
from IRS. The Court denied the TROs and set the only
hearing ever held in this matter. (See ADVP-5).
On November 9, 1998, the Bankruptcy Court
held the only formal hearing held in this case. (See
Transcript at ADVP-11). Only Allison testified. Deputy ,
U.S. Attorney Francis appeared, as did Karl Englund
for the Trust. Only two exhibits were admitted
regarding the Social Security system. (ADVP-11). IRS
submitted a post-hearing brief, wherein Allisons
discovered the Delegation Orders and Sealed Bid Sale
notices of IRS had been fraudulently prepared and
were falsified before submission. (See ADVP-13). IRS
Group Manager Yurt did not have delegation authority
and had not approved the out of county sale. Due to
the newly discovered fraudulent “Notices of Sale” and
Delegation Orders, Allisons provided the Court a
Supplemental Memorandum (See ADVP-14) and a
Reply to the U.S. IRS post-hearing brief, including
copies of the Orginal Sealed Bid Sale documents for
the Court to examine. (See ADVP-15).
On December 4, 1998, Bankruptcy Judge
Peterson issued his 23 page Order and Judgment.
That decision was appealed by Allisons. (See ADVP-
16, 17 and Appendix A-7).
On December 11, 1998, Allisons filed their
Notice of Appeal under 28. U.S.C. 158(a), and made
their election to have the appeal heard by the Montana °
U.S. District Court rather than by the Bankruptcy
Appellate Panel Service. (See ADVP-18 and Appendix
A-8). An examination of the Appendix will show the
Appeal was timely and within the 10 day time limit.
The Appeal to the U.S. District Court for
Montana became Case No. CV-98-181-BLG.
8
Unfortunately for Allisons, the judge assigned to hear
this matter was the very same Judge Shanstrom who,
in the first instance, granted IRS its “Writ of Entry”
used to search and seize Allisons’ properties, which
_ forced Allisons to seek the relief of the Bankruptcy
Court. Allisons immediately sought to have
Shanstrom either recuse himself, or to have him
disqualified. (See DCA-1). Shanstrom refused to
recuse himself, and the disqualification motion as
never dealt with. The entire record, on appeal, from
the Bankruptcy Court was not provided to the District
Court on appeal. (See DCA-7). The Docket Sheet
indicates the entire record below, and the exhibits
were not before the District Judge, on appeal. No Oral
Argument was allowed, and the Court had an
incomplete record.
On April 16, 1999, Shanstrom, sitting as an
appeals judge, in this appeal from Bankruptcy Court,
issued his initial Order, which included an Order for
Allison to pay attorney’s fees to the Trust for the
bankruptcy case. (See DCA-10 and Appendix A-4).
Allisons opposed costs sought by the Boiler-makers,
and the District Court Order. On July 20, 1999,
Shanstrom issued another Order and partially
addressed the issue of the costs and attorney’s fees
originally granted to the Trust. (See DCA-12 and
Appendix A-5). The issue of the timeliness of the
appeal from Bankruptcy Court to the U.S. District
Court was never challenged by any party during the
District Court appeal. The record reflects the appeal
was timely. (Appendix A-9 and A-10).
Given the results of the District Court appeal,
where Shanstrom sat in appellate judgment on
matters he previously decided at the trial court level,
Allisons were forced to appeal to the Ninth Circuit.
Allisons filed a timely initial joint expanded opening
. 9
appeals brief in April 2000, and after the United
States/U.S. IRS filed a Response Brief, they filed a
timely joint reply brief on July 21, 2000.
In their Response, IRS raised, for the first time,
the issue of timeliness of appeal from the Bankruptcy
Court to the U.S. District Court. They maintained the
appeal was not perfected in the ten day time limit.
Allisons responded to that argument, with the
documents to prove otherwise. (See ADVP-16, 17, 18
and Appendices A-7 through A-10).
On September 26, 2000, the Ninth Circuit three
judge panel issued their unpublished MEMORANDUM
in Case No. 99-35949. In that MEMORANDUM, the
panel bought the timeliness argument of IRS and
found that Bankruptcy Appeal to the U.S. District
Court not timely, effectively getting Shanstrom off the
hook. (See Appendix A-1).
Allisons first sought a rehearing, by the panel,
addressing timeliness of appeal from Bankruptcy
Court to the U.S. District Court. A timely petition for
rehearing, by the three judge panel was filed, by
Allisons, pursuant to Rule 40 of the Federal] Rules of
Appellate Procedure, on October 19, 2000. Petition for
a panel rehearing was denied on January 2, 2001.
(See Appendix A-2). .
Allisons then sought an En Banc Rehearing,
filing a Notice of Intent to Petition for Rehearing En
Banc on January 16, 2001. On January 30, 2001,
Allisons filed a Petition for Rehearing En Banc
pursuant to Rule 35, Federal Rules of Appellate
Procedure. As of the date of the filing of this Petition
for Writ of Certiorari, no response to the Petition for a
Rehearing En Banc has ever been received from the
Ninth Circuit by Allisons.
10
To protect their right of appeal, Allisons made
application to Justice O’Connor, of the Supreme
Court, for an extension of time to file a Petition for Writ
of Certiorari, pursuant to Rules of the United States
Supreme Court, on March 21, 2001.
- Qn April 4, 2001, the Clerk of the United States
Supreme Court issued a letter notifying Allisons that
Justice O’Connor extended the filing time of a Petition
for Writ of Certiorari until and including May 2, 2001.
This PETITION FOR WRIT OF CERTIORARI was filed
prior to the May 2, 2001, deadline given in the Clerk’s
letter. (See Appendix A-3).
As a result of the above actions by the three
judge panel, Allisons have now filed this timely and
appropriate PETITION FOR WRIT OF CERTIORARI well
within the May 2, 2001, deadline given by Justice
O’Connor, in the Supreme Court.
REASONS FOR GRANTING THE WRIT
The Petitioners, RONALD J. ALLISON &
MARTHA J. ALLISON, have formulated the following
four reasons as to why the United States Supreme
Court should grant them a WRIT OF CERTIORARI to
review the decisions of the Ninth Circuit three judge
panel in this case. Those are:
(A) WHETHER THE DECISION OF THE NINTH
CIRCUIT COURT OF APPEALS, REGARDING THE
CONDUCT OF THE RESPONDENTS, IS CONTRARY
TO AND IN DIRECT VIOLATION OF THE RIGHTS
AND PROTECTIONS GRANTED THE PETITIONERS
BY THE 47H, 5°, 7TH AND 10TH ARTICLES IN
AMENDMENT TO THE ORIGINAL ORGANIC
CONSTITUTION OF THE UNITED STATES OF
11
AMERICA, (U.S.C.A. Constitutional Amendments 4, 5,
7 and 10).
(B) WHETHER THE DECISION OF THE NINTH
CIRCUIT COURT OF APPEALS, REGARDING THE
CONDUCT OF THE RESPONDENTS IS CONTRARY
TO AND IN DIRECT CONFLICT WITH RELEVANT
DECISIONS OF THIS COURT, OTHER DECISIONS
OF THE NINTH CIRCUIT, AND OTHER CIRCUIT
COURTS OF APPEALS DECISIONS.
(C) WHETHER THE DECISION OF THE NINTH
CIRCUIT COURT OF APPEALS, REGARDING THE
UNIQUE STATUS OF THE PETITIONERS, IS
CONTRARY TO AND IN DIRECT CONFLICT WITH
RELEVANT DECISIONS OF THIS COURT, OTHER
DECISIONS OF THE NINTH CIRCUIT COURT, AND
OTHER CIRCUIT COURTS OF APPEALS
DECISIONS.
(D) WHETHER THE DECISION OF THE NINTH
CIRCUIT COURT OF APPEALS IS ERRONEOUS
WITH REGARD TO THE CONDUCT OF THE U.S.
IRS, THE U.S. DISTRICT COURT, AND THE
MONTANA U.S. BANKRUPTCY COURT BELOW, AS
TO VIOLATIONS OF STATUTORY LAW AND
RELEVANT RULES AND REGULATIONS.
(A) CONSTITUTIONAL VIOLATIONS
Allisons have alleged that conduct of the
Respondents, in particular the United States and its
federal agency, the IRS, have violated the protections
and rights granted Allisons by several Articles in
Amendment to the Original Organic Constitution of the
_— ee
12
United States of America. (U.S.C.A. Const.
Amendments).
Thus, it is imperative for this Court, on
Certiorari review of the Ninth Circuit Court panel’s
MEMORANDUM, to return to and revisit the
foundation and basis for our entire legal system, the
Original Organic Constitution of the United States of
America, and to those Articles in Amendment to that
Constitution (as opposed to the provisions of the
federal [United States] constitution). Our Original
Organic Constitution is the basis for statutory and
case law. All laws passed must ultimately pass
Constitutional muster if they are to survive judicial
scrutiny. Allisons have alleged violations of specific
Constitutional sections, including: Article I, Section 8,
Clause 1; Article I, Section 9, Clause 4; and, Article
VI, Clause 2; of the Original Organic Constitution of
the United States of America.
Article I, Section 8, Clause 1, states in pertinent
part: “Section 8. The Congress shall have Power to
lay and collect Taxes, Duties, Imposts, and Excises, to
pay the Debts and provide for the common defence
and general Welfare of the United States; but all
Duties, Imposts, and Excises shall be uniform
throughout the United States;”
Article i, Section 9, Clause 4, states in pertinent
part: “Section 9. . .No Capitation, or other direct, Tax
shall be laid, unless in Proportion to the Census or
enumeration herein before directed to be taken.”
Furthermore, Article VI, Clause 2, states in
pertinent part:
“This Constitution, and all Laws of the United
States which shall be made in Pursuance
13
thereof; all treaties made, or which shall be
made, under the Authority of the United States,
shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby,
any thing in the Constitution or Laws of any
State to the Contrary notwithstanding.”
Also, Allisons maintain that conduct of the
federal government’s IRS violated their rights under
the 4th, 5th, 7 and 10* Articles in Amendment to the
Original Organic Constitution of the United States of
America (U.S.C.A. Const. Amend. 4, 5, 7 and 10), part
of the “Bill of Rights” ratified in 1791.
Article in Amendment IV, states as follows:
“The night of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrant 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.” (See also U.S.C.A. Constitutional
Amendment 4).
Article in Amendment \V, states in its entirety as
follows:
“No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury,
except in cases arising in the land or naval
forces, or in the Militia, when in actual service
in time of War or public danger; nor shall any
person be subject for the same offence to be
twice put in jeopardy of life or limb, nor shall be
compelled in any criminal case to be a witness
14
against himself, nor be deprived of life, liberty,
or property, without due process of law; nor
shall private property be taken for public use
without just compensation.” (See also U.S.C.A.
Constitutional Amendment 5).
Article in Amendment VII, dealing with the right
to a trial by a jury of one’s peers states in its entirety:
“In Suits at common law, where the value in
controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no
fact tried by a jury shall be otherwise
reexamined in any Court of the United States,
than according to the rules of common law.”
(See also U.S.C.A. Constitutional Amendment
7).
Article in Amendment X, also a part of the “Bill
of Rights” states in its entirety, as follows: “The
powers not delegated to the United States by the
Constitution nor prohibited by it to the States, are
reserved to the States respectively, cr to the people.”
(See also U.S.C.A. Constitutional Amendment 10).
Allisons maintain conduct of the United States
(federal government) and IRS violated protections and
rights granted to Allisons and specifically the 4th, 5th,
7» and 10‘ Articles in Amendment to the Original
Organic Constitution of the United States of America,
as well as provisions of the 14'n and 16th Amendments
to the United States Constitution. Those Consti-
tutional provisions are the supreme law of the land
and cannot be overridden by any laws passed by
Congress [statutory law] or any law feat astn by
any Court [case law].
15
All statutes and case law must first be squared
with the Constitution itself and with the Articles in
Amendment to that Constitution. Any laws found to
be unconstitutional or in violation of the Constitution,
are then, in effect, deemed “null and void”. The case of
Marbury v. Madison, (1803), first stated that principle
when the Supreme Court held that:
“It is also not entirely unworthy of observation
that in declaring what shall be the supreme law
of the land, the Constitution itself is first
mentioned, and not the laws of the United
States, generally, but those only which shall be
made in pursuance of the Constitution have
that rank. Thus, the particular phraseology of
the Constitution of the United States confirms
and strengthens the principle, supposed to be
essential to all written constitutions, that a law
repugnant to the Constitution is void and that
the courts, as well as other departments, are
bound by that instrument.”
The decision of the Ninth Circuit panel, in its
MEMORANDUM, does not pass Constitutional muster.
It remains an incontrovertible fact that the 16"
Amendment to the Constitution, by virtue of its
language, is an “excise tax”. A comprehensive
examination of the legislative history and intent
indicates clearly that the 16t* Amendment was enacted
by Congress to tax corporations and other artificial
entities, which are creations of government and
subject to the rules, and regulations of the government
for their existence. The 16‘ Amendment is being
fraudulently applied to individuals, like Allisons, when
it is, in reality, a corporation excise tax.
16
To truly understand the 16% Amendment, one
, must examine Congressional Record-Senate, p. 1568,
April 28, 1909, regarding Senate Joint Resolution 25;
p. 3377, June 17, 1909, regarding Senate Joint
Resolution 39; pp. 3344-3345, June 16, 1909,
regarding President Taft’s address to Congress
(outlining the requirements for passing the 16”
Amendment); and, p. 3900, June 28, 1909, regarcing
the language of Senate Joint Resolution 40, which
became the 16t* Amendment. That language follows:
wa. Rieter,
“Article XVI. The Congress shall have the power
to lay and collect taxes on incomes, from
whatever source derived, without apportion-
ment among the several States, and without
regard to any census or enumeration.”
Yet, the federal government wants us to believe
the 16" Amendment somehow negated the powerof ”
Article I, Section 9, Clause 4, of the Original Organic
Constitution of the United States of America. It did
not. The passage of the 16t» Amendment did not
extend the taxing powers of the federal government to
new or excepted subjects. See Stanton v. Baltic
Mining Co., 240 U.S. 103; Peck v. Lowe, 247 U.S. 165,
Eisner v. MaComber, 252 U.S. 189, and Brushaber
v. Union Pacific Railway Co., 240 U.S. 1. Allison, a
natural born, sovereign citizen and resident of the
state of Montana, and a non-taxpayer, cannot have the
federal government’s 16'" Amendment corporate excise
tax legally applied to him. He does not qualify. Such
application is fraudulent and unconstitutional as to
him, given his unique status. See Pollock v. Farmers
Loan & Trust Co., 157 U.S. 429, and Miller v.
Standard Nut & Margarine Co., 284 U.S. 498.
It should be abundantly clear, from the
standard set in G.M. Leasing v. United States, 429
17
U.S. 338, that the warrantless search and seizure of
Allisons’ properties was in direct violation of Articles in
Amendment 4 and 5. By dismissing this action
without a trial, both the Bankruptcy Court and the
U.S. District Courts below denied Allisons their 7‘
Article in Amendment right to trial by jury. Jury trial
was demanded by Allisons in their Complaint. Yet, this
case was decided solely on the briefs and one short
motions hearing. No trial was held at the trial level in
the Adversarial Proceeding in the U.S. Bankruptcy
Court, even though that Court is an Article III Court
with such powers and jurisdiction. Article III of the
Constitution states, in pertinent part, as follows:
“Section 1. The judicial Power of the United
States, shall be vested in one Supreme Court,
and in such inferior Courts as the Congress
may from time to time ordain and establish...
Section 2. The judicial Power shall extend to all
Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under
their Authority;--...to Controversies to which the
United States shall be a Party;”
Bankruptcy Court was an Article III Court, which did
have jurisdiction and full authority to decide and
adjudicate all the issues before it.
Finally, Allisons contend Constitutional powers
not given the federal government remain the purview
of the States, or the people themselves. The federal
government’s fraudulent application of federal income
tax to individuals like Allison is violation of the 10t
Article in Amendment, in that the constitution never
granted that authority to the federal government or
IRS.
18
(B) CONFLICT OF LAWS, STARE DECISIS:
Allisons maintain that both material points of
fact and relevant legal decisions were overlooked by
the Court below, in its MEMORANDUM. Further, they
maintain the decision of the three judge panel does
conflict with decisions of this Court, and other
published decisions of the Ninth Circuit Court and the
other circuit courts.
If the concept of “stare decisis”, which literally
means, “to abide by, or adhere to, decided cases”,
remains a valid legal principle, then this case, as
addressed by the Ninth Circuit’s panel clearly deserves
a Certiorari review by the Supreme Court.
Black’s Law Dictionary, (Fifth Edition) defines
“stare decisis” as indicating that it is the “policy of
courts to stand by precedent and not disturb a settled
point”. In Neff v. George, 4 NE 2d 388, 391, that court
defined “stare decisis” as a doctrine that: “When a
court has once laid down a principle of law as
applicable to a certain state of facts, it will adhere to
that principle, and apply it to all future cases, where
facts are substantially the same; regardless of whether
the parties and property are the same.” Horne v.
Woody, 146 SW2d 505.
One Ninth Circuit case also addresses the
principle of “stare decisis”. In State v. Mellenberger,
95 P.2d 709, they held:
“Under doctrine [stare decisis], a deliberate or
solemn decision of the court made after
argument on a question of law fairly arising in
the case, and necessary to its determination, is
an authority, or binding precedent in the same
court, or in courts of equal or lower rank in
19
subsequent cases where the pount is again in
controversy.”
Allisons are adamant that the principles of
“stare decisis” and “precedent” are not being adhered
to by the courts below.
Allisons are seeking, through this Petition for
Certiorari review to have the Supreme Court determine
if the MEMORANDUM is in conflict with and contrary
to other relevant cases. The cases presented below
have previously been presented in the courts below.
Specific cases the Allisons maintain are in conflict with
the panel decision below include: Bevins v. Six
Unknown Federal Narcotics Agents, 403 U.S. 338;
Boethke v. Fluor Engineers & Constructors, Inc., 713
F.2d 1405 (9* Cir. 1983); Economy Plumbing &
Heating Co. v. United States, 470 F.2d 585 (1982);
General Motors Leasing Corp. v. United States, 429
U.S. 338; and Long v. Rasmussen, 281 F.2d 236, (a
case originating in the Montana U.S. District Court,
but still good law.) Others include: Brushaber v.
Union Pacific Railway, 240 U.S. 1; Eisner v.
MaComber, 252 U.S. 189; Liljeberg v. Health Services
Acquisition Corp., 108 S.Ct. 2194; Miller v. Standard
Nut & Margarine Co., 284 U.S. 498; Peck v. Lowe, 247
U.S. 165; Pollock v. Farmers Loan & Trust Co., 157
U.S. 429; See v. City of Seattle, 382 U.S. 541; Stanton
v. Baltic Mining Co., 240 U.S. 103; and Thatcher v.
Powell, 6 Wheat 119. Others include Cohens v.
Virginia, 19 U.S. (6 Wheat 264); Commissioner v.
Shapiro, 424 U.S. 614; Edwards v. Cuba RR, 45 S.Ct.
614; Garner v. United States, 424 U.S. 648; Laing v.
United States, 423 U.S. 184; United States v. Sullivan,
274 U.S. 259; and U.S. ex. rel. Accardi v.
Shaughnessy, 347 U.S. 260. These U.S. Supreme
Court cases, are authoritative case law. They ’
20
are precedent, and “stare decisis” should require their
application to the case at bar by the Ninth Circuit.
In addition, there are numerous Circuit Court
cases previously cited by Allison in the courts below,
but which have not been considered. Those cases
include: United States v. Bosurgi, 530 F.2d 1105;
Schering Corp. v. Home Insurance Co., 717F.2d 4;
SMS Industries, Inc: v. -P.S. International,
643 F.2d
289; Reece v. Scoggins, 506 F.2d 967;
Bancorp v. Commercial Paper Holders, 753 F.2d 1334;
Elias v. Connett, 908 F.2d 521; Fontenot v. Upjohn
Co., 780 F.2d 1190; Friednash v. Commissioner, 209
F.2d 601; Garrett v. City & County of San Francisco,
818 F.2d 1515; Goodwin v. United States, 935 F.2d
1061; Hall v. Hawaii, 791 F.2d 759; Hancokk.y,
Montgomery Ward LTDT, 787 F.2d 1302; James v.
Gable, 732 F.2d 49; McPartin v. prams oom 653
F.2d 1185; and Patty Precision v. Browne & Sharpe
Manufacturing, 742 F.2d 1260. Others would include:
Bullock v. Latham, 306 F.2d 45; Butz v. Economou,
438 U.S. 478; In Re Price, 42 F3d 1068; Jensen v. IRS,
835 F.2d 196; LaFollette v. U.S., 176 F.Supp. 192;
Lassoff v. Gray, 266 F.2d 745; L.O.C. Industries, Inc.
v. United States, 423 F.Supp. 265; Rodriguez v. United
States, 629 F.Supp. 333; U.S. v. Bonaguro, 294
F.Supp. 750; White v. Commissioner, 537 F.Sup. 679;
U.S. ex. Rel. Brooks v. Clifford, 490 F.2d 706; U.S. v.
Heffner, 420 F.2d 809; and Yannacelli v. Nash, 354
F.Supp. 143.
“Stare decisis” mandates these cases be
considered by the courts below. Both Allisons and the
United States have focused on the Condo case. (See
United States v. Condo, 782 F.2d 1502). The courts
below have also invoked Condo. Allisons
21
maintain that Condo supports their propositions and
arguments made in this case. Condo raises
precedents and invokes stare decisis, as it is based
upon court rulings in Flores v. United States, 551 F.2d
1169; General Motors Leasing v. United States, 429
U.S. 338; Camara v. Municipal Court, 387 U.S. 523; In
Re Gerwig, 461 F.Supp. 449; and Enochs v. Williams
Packing & Navigation Co., 370 U.S. 1. These are all
cases Allisons have raised in the courts below, to no
avail. Condo and its precedents support the
contentions of Allisons, and conflict with the court
decisions below.
Other than Condo, the above-identified cases
have not been challenged or distinguished apart from
the propositions raised by Allisons in the court
decisions below.
(C) UNIQUE STATUS OF PETITIONERS:
Allison maintains that he has a unique status
which makes the federal income tax inapplicable to
himself. He consistently challenged on many occasions
the validity and legality of the jurisdiction, authority,
and venue of IRS, without receiving a direct response.
In this case, specifically, Mr. Allison did directly
challenge the authority, jurisdiction, and venue of IRS,
with Agent Bouldin. Instead of responding to these
fundamental challenges, Agent Bouldin instituted
actions which resulted in wrongful and illegal search
and seizure of Allisons’ real and personal properties,
and ultimately wrongful and illegal sale of those
properties. IRS not only seized and sold Mr. Allison’s
properties, against whom they made alleged claims,
but seized and sold the solely-owned property of
Martha J. Allison, against whom IRS admits it has no
22
claims or controversies. Allisons have challenged the
authority, jurisdiction, and venue of IRS, both in the
original Bankruptcy action and in the Adversarial
Proceeding, but the courts below refused to address
those challenges.
| It was wrong for IRS to seize and sell Martha J.
Allison’s solely-owned real property, in an attempt to
satisfy the alleged federal income tax deficiencies of
her spouse, Ronald J. Allison. In Raffaele v. Grange er,
196 F.2d 620 (1952), that court held:
“The United States cannot take property from
an innocent spouse to satisfy the tax obligation
of a delinquent spouse”,
and, further, that
“A statute prohibiting suit to restrain collection
of taxes does not prevent judicial interposition
to prevent the collector of internal revenue from
taking the property of one person to satisfy the
tax obligations of another.”
In addition to the challenges in the Bankruptcy
case and the Adversarial action, Allison has challenged
IRS authority, jurisdiction, and venue as follows,
including:
(a) Demand for Proof of Authority,
Jurisdiction, & Venue, in Personam & In
Rem, dated November 6, 1996, and
served on IRS Agent Bouldin, by certified
mail.
(b) Affidavit of Facts Establishing Status of
Citizenship, dated March 31, 1992, and
filed with the Clerk & Recorder for
Rosebud County, Montana.
(c) Affidavit & Notice of Ronald J. Allison,
Affidavit of Declaration of Title as Holder
23
of Quiet Title to One’s Self, and Social
Security Revocation of Ronald J. Allison,
all dated July 4, 1984, and which were
all served upon IRS, the Social Security .
Administration, U.S. Attorney General,
Health & Human Services, Treasury, the
Governor & Treasurer of the State of
Montana, Montana Revenue Department,
and Mr. Allison’s employer then, Bechtel
Construction, all by certified mail.
As of the date of this PETITION FOR WRIT OF
CERTIORARI, IRS and no one else in the federal
government has addressed those challenges. Neither
have they established valid, legal authority, juris-
diction and venue over Allison or his real and personal
properties. Once jurisdiction is challenged, it is a valid
legal maxim that the party attempting to prove it has
jurisdiction must come forward with the evidence. “The
proponent of a rule or order has the burden of proof.”
(See 5 U.S.C. 556(d)).
As for IRS’s claims against Mr. Allison, that
burden has not been met.
Furthermore, Mr. Allison has maintained from
the outset, and IRS has not contradicted him, that the
sections of the Internal Revenue Code (IRC), which IRS
is attempting to apply to him constitute a fraudulent
and unconstitutional application, given his status.
Sections of 26 U.S.C. that IRS claim apply to Mr.
Allison have implementing rules and regulations in 27
C.F.R. 70, which apply to the sale, manufacture, and
distribution of alcohol, tobacco, and firearms. Allisons
are not engaged in such business, and are not subject
to these types of excise taxes. Allison is a natural born,
sovereign citizen and resident of the United States of
24
America, but he is not a citizen or resident of the
federal government [United States]. Under 28 U.S.C.
1746, Allisons are “without” the United States, and its
jurisdiction, authority, and venue. Allison is a “non- :
resident” to the state of the forum of the United States
[federal] IRS. He is not a resident of the District of :
Columbia, or any federal reservation, enclave, or
instrumentality, nor a federal military reservation, nor
is he within any class of persons upon whom the
federal IRS has authority to impose a bk eek
federal income tax.
Mr. Allison is not within the classes of persons
subject to the levy and distraint authority of IRS.
Under Section 26 U.S.C. 6331, IRS has “limited levy
and distraint authority”. That section states as
follows: “Levy may be made upon the accrued salary
or wages of any officer, employee, or elected official of
the United States, the District of Columbia, or any
agency or instrumentality of the United States or the
District of Columbia...
The Code of Federal Regulations (CFR) expands upon
that, in pertinent part, as follows:
26 CFR 301.6331-1lafii) and (iii):
“Salaries, wages, and other compensation of any
officer, employee, or elected or appointed of a
state or territory, or of any subdivision thereof,
are also subject to the levy to enforce collection
of any federal tax; .. .”
and
“Wages of Seamen, apprentice seamen, or
fishermen employed on fishing vessels are
subject to levy.”
25
As IRS had no levy and distraint authority, they
also did not have legal authority for the seizure and
sale of Allison’s property.
Furthermore, Allison is not a taxpayer. He isa
“nontaxpayer” so far as the federal income tax
definitions. In making their “nontaxpayer” status
claim, Allisons rely on the ruling in Long v.
Rasmussen, a Montana federal court case, which held:
“...they [the revenue laws] relate to taxpayers,
and not to nontaxpayers. The later are without
their scope. No procedure is prescribed for
nontaxpayers, and no attempt is made to annul
any of their rights and remedies in due course
of law.” (See Long v. Rasmussen, 281 F236,
238 (D.Ct. Montana, 1922).
The fact remains that Allison is a natural born,
sovereign, unenfranchised nontaxpayer with regard to
IRS. Allison has revoked his participation in the
fraudulent federal Social Security scheme and, as
such, had divested himself of any and all contractual
ties to the federal government and its revenue raising
arm, IRS.
Allison does not meet definitions of a “taxpayer”
or a “United States person” as those terms are defined
in federal law at 26 U.S.C. 7701(a)(1), (1)(14) and
(1)(30). Furthermore, he is not “within the United
States’, but is “without the United States”, as those
terms are defined at 28 U.S.C. 1746.
The Supreme Court has previously ruled that
an “income tax” is an “excise tax”, which is synon-
ymous with a “privilege tax”. Mr. Allison is not
asserting any privilege, but only his rights, as
guaranteed by the Constitution. As he is not
a
26
exercising any “privilege” there cannot be imposed on
him ‘% any “privilege” or “income tax”. Conclusion
reached by this Court in Pollock v. Farmer’s Loan &
Trust Co., 158 U.S. 601 (1895), held that “taxation on
income was, in its nature, an excise tax” that remains
good law today. See also Brushaber v. Union Pacific
Railway Co., 240 U.S. 1, and Foster & Co., v. Graham,
154 Tenn. 412. In Idaho Gold Dredging Co. v.
Balderston, at 58 ID 692, that Idaho court held that:
“There can be only two kinds of taxes in the
United States. A tax must be either a direct tax,
in which it is subject to the rules of
apportionment, or a privilege tax. A privilege
tax can never be imposed upon an exercise of a
right under the constitution. The obligation to
pay an excise tax is based upon the voluntary
action of the person being taxed in performing
the act, or enjoying the privilege, or engaging in
the occupation which is the subject of the
excise, and the element of absolute and
unavoidable demand is lacking.”
“If you don’t want to pay the tax, simply don’t
exercise the privilege.” People ex. Rel. Attorney
General v. Naglee, 1 Cal 232. Income tax is not a tax
on income, but a tax imposed upon a privilege,
measured in income. In Flint v. Stone Tracy Co., 220
U.S. 107 (1911) this court held:
“Excises are taxes laid upon the manufacture
sale or consumption of commodities within a
country, upon licenses to pursue certain
regulated occupations, and upon corporate
privileges; the requirement to pay such taxes
involves the exercise of the privilege...”
Allison, a human being, unlike a corporation,
cannot be taxed for the mere privilege of existing and
27
exercising his constitutional nights. An individual’s
right to live and own property are natural rights, for
the enjoyment of which an excise tax cannot be
imposed. (See Redfield v. Fisher, 292 OR 814). The
legislature cannot name something to be a taxable
privilege unless it is first a privilege. “The right to
receive income or earnings is a right belonging to every
person and realization and receipt of income is
therefore not a privilege that can be taxed.” Jack Cole
Co. v. McFarland, 337 SW2d 453.
IRS actions against Allisons are not authorized
by law. IRS did not just exceed their aan and
authority; they have none.
“A distinction must be here observed between
excess of jurisdiction and the clear absence of all
jurisdiction over the subject matter. Any authority
exercised is usurped authority, and for the exercise of
such authority when the want of jurisdiction is known
to the judge, no excuse is permissible.” Bradley v.
Fisher, 13 Wall. 335. Section 26 CFR 601.106 states:
“An exaction by the U.S. government, which is not
based in law, statutory or otherwise, is a taking of
property without due process of law, in violation of the
Fifth Amendment to the Constitution...” The rights of
Allisons to be protected against fraudulently imposed
and unconstitutionally applied federal liens, levies and
seizures, prior to any due process of law, is recognized
in the Original Organic Constitution and its Articles of
Amendment. The unique status of Allisons must be
taken into consideration in this matter.
(D) VIOLATIONS OF STATUTES, RULES AND
REGULATIONS
Allisons have demonstrated that conduct of IRS
and of the courts below violated their rights
28
guaranteed under the 4+, 5th, 7th and 10th Articles in
Amendment to the Original Organic Constitution of the
United States of America. Allisons also maintain both
IRS and the courts below violated statutory law and
applicable implementing rules and regulations. With
regard to IRS, this Court needs only to examine the
fraud perpetrated upon the courts below through their
submission of the falsified and fraudulent “Notices of
Sale’ and “Delegation Orders” which the U.S. Attorney
submitted as evidence in this case. Both 18 U.S.C.
1001 and 26 U.S.C. 7214 were violated by government
in the preparation and submission of the fraudulent
documents below. The warrantless search and
seizure, conducted under “color of law’, violated law.
The out-of-county Sealed Bid Sale of the seized
property violated rules. The Doctrine of “unclean
hands’ must be applied to IRS.
Allisons raised in their Complaint in the
Bankruptcy Adversarial action, some thirteen specific
statutory, rule or regulation violations by IRS, even
before the search and seizure. None of these violations
have been addressed.
The Courts below are just as culpable as IRS.
The Bankruptcy Court refused to force IRS into court
to raise and defend alleged claims against Allison.
Bankruptcy Rule 4007 sets forth procedure for
determination of dischargeability of debt and requires
filing of a complaint by the creditor. Yet, the
Bankruptcy Court would not bring IRS in until an
adversarial action was filed. Then, it would not allow
meaningful discovery to occur and when, post-hearing,
Allisons discovered fraudulent sales documents and
delegation orders, the court chose not to examine that
fraud. As to the Trust, the Bankruptcy Court refused
to apply 27 CFR 70.163, which states: “Any person
who mistakenly surrenders to the United States any
29
property or rights to property not properly subject to
levy is not relieved from liability to a third party who
owns the property.”
Allisons completed timely appeal and election to
be heard by District Court rather than the BAPS. (See
Appendices A-7 through A-10). At the District Court,
on appeal, that issue was not raised. (28 USC 158(a).
At District Court, Judge Shanstrom, the same judge
who initially issued the “Writ of Entry” used by IRS to
search and seize Allisons’ properties, continued to
improperly sit as an Appellate Judge, reviewing his
own prior judicial actions. Allisons requested he
recuse himself. He refused. They requested he be
disqualified. No action was taken. Judge Shanstrom
should have required a warrant and probable cause.
He then should have removed himself from the case at
the point of the appeal. Instead, without even having
the record on appeal, or exhibits, he decided to uphold
the Bankruptcy Court’s decision. To cover himself, he
stayed on the case and denied Allisons’ causes of
action by denying their preliminary pre-trial motions.
Shanstrom also improperly granted costs and fees.
Shanstrom’s decision was then appealed to the
Ninth Circuit. For the first time, issue of timeliness of
appeal from Bankruptcy Court to U.S. District Court
was raised to further cover Shanstrom’s errors. Even
when the panel was presented the actual documenta-
tion showing a timely appeal was filed, (See Appendix
A-7 through A-10), they disregard the evidence. When
timely Petition for Rehearing by the panel was rejected,
Allisons sought a Rehearing En Banc. Ninth Circuit
never responded. To protect themselves, Allisons made
application to Justice O’Connor for an extension of
time to file this PETITION FOR WRIT OF CERTIORARI,
which was granted and is now before this Court.
30
IRS’s actions against Allisons were a direct
result of their challenging authority, jurisdiction, and
venue of IRS. IRS's actions were vindictive in nature
and constitute actual malice toward Allisons, who were
only attempting to assert their Constitutional rights
and protections. IRS violated those Constitutional
rights, violated Due Process, and violated agency
statutes and implementing rules and regulations.
The Court’s actions below were just as
reprehensible in that those courts condoned the illegal
actions of IRS, refused to examine facts and legal
precedents presented them, violated their own for
operational rules as federal Article III Courts.
There is a very compelling case for review of the
Ninth Circuit’s MEMORANDUM, by the United States
Supreme Court, pursuant to this PETITION FOR WRIT
OF CERTIORARI, and such review should be granted.
CONCLUSION
For reasons presented hereinabove, a WRIT OF
CERTIORARI should issue from the United States
Supreme Court to review MEMORANDUM issued by
Ninth Circuit Court of Appeals dated September 26,
2000, as well as review ORDER issued by Ninth
Circuit Court of Appeals dated January 2, 2001.
Respectfully submitted of
RONALD J. ALKISON, Pro Se, for
Ronald J. Allison, Petitioner &
Martha J. Allison, Petitioner
390 N. 10» Ave., P.O. Box 661
Forsyth, MT 5932
1-406-356-2904
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.