Petition for Writ of Certiorari — Blankstyn v. United States

Supreme

FItr.&D

. AUG 9 1989

9 3) ~ 2 () OFFICE us ante CLERI

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

WILLIAM C. BLANKSTYN,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM C. BLANKSTYN

16213 South 35th Street

Phoenix, Arizona 85044

(602) 759-9024

“Petitioner, In Propria Persona

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Petitioner was entitled

to injunctive relief under Internal Revenue

Code (IRC), §§6213(a) and 7421 after a

Notice of Deficiency was issued under IRC,

§6212(a) and was properly deposited in the

United States Mail by the Internal Revenue

Service (IRS), but was mishandled by the

United States Postal Service resulting in

the Petitioner’s non-receipt of the Notice?

2« Whether Rule 65(a)(2), Federal

Rules of Civil Procedure (FRCP), requires

the district Court to give notice to the

parties before it advances the trial on the

merits and consolidates it with the hearing

on preliminary injunction?

THE PARTIES

The only parties are those who appear

in the caption of the case.

ii |

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .... j

ro

TABLE OF AUTHORITIES .....,,.. vy

STATUTES AND REGULATIONS ....... yi

ce

OPINION OF THE COURT BELOW ...... 92

WeE@ORCTIOM . wT wk kk ke

STATUTORY PROVISIONS INVOLVED. .... 3

STATEMENT OF THE CASE AND FACTS... . 5

ae

I. THE DECISION OF THE UNITED

STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT WITH

RESPECT TO THE DENIAL OF THE

PERMANENT INJUNCTION IS IN

CONFLICT WITH THE DECISIONS

OF SEVERAL OTHER UNITED

STATES COURTS OF APPEAL AND

IS AN IMPORTANT QUESTION OF

FEDERAL LAW WHICH HAS NOT

BEEN, BUT SHOULD BE, DECIDED

BY THIS COURT .. wa ae

iii

IT.

CONCLUSION

THE FAILURE OF THE DISTRICT

COURT TO GIVE NOTICE TO THE

PARTIES BEFORE IT ADVANCED

THE TRIAL ON THE MERITS AND

CONSOLIDATED IT WITH THE

HEARING ON JHE PRELIMINARY

INJUNCTION, UNDER THE

PROVISIONS OF RULE 65(a)(2),

FRCP, IS IN CONFLICT WITH

THE APPLICABLE DECISIONS OF

THIS-COURT . + «© © © © @ «

iv

TABLE OF AUTHORITIES

CITATION PAGE

ABRAHAM ZION CORP. v. LEBOW,

761 F.2d 93, 101 (2nd Cir., 1985) 22

AIR LINE PILOTS’ ASS’N,

INTERN. v. ALASKA AIRLINES, INC.,

898 F.2d 1393 (9th Cir., 1989) 21, 22

COMMISSIONER OF INTERNAL

REVENUE v. POWELL, 121 L.Ed.2d 359,

She SeCG. £40 (2992) . . « 2 « s « 28

GELLMAN v. STATE OF MARYLAND,

938 F.2d 603 (4th Cir., 1975) .. 21

KEADO v. UNITED STATES,

853 F.2d 1209 (5th Cir., 1984) .. 15

MCPARTLIN v. UNITED STATES,

653 F.2d 1185 (7th Cir., (1981) 15, 18

MULVANIA v. COMMISSIONER,

oa ee ee Eeweer els « « 6 sw ee AS

PENN v. SAN JUAN HOSPITAL,

5928 F.2d 1181 (10th Cir., 1975) . 21

POWELL v. C.I.R.,

958 F.2d 53 (4th Cir., 1992) . 15, 18

PYO v. COMMISSIONER,

SS Ee Gee (2986) . . - «© s © wp wo e 26

UNIVERSITY OF TEXAS v. CAMENISCH,

451 US 390, 68 L.Ed.2d 175,

101 S.ct. 1830 (1981) . . 20, 21

STATUTES AND REGULATIONS

SECTION PAGE

wee “ESOGR(2) § 5 iw 6 tt ee we CESS

Ame $6651 2 © 6+ © © © © © © & © © eh 4

Bm $0063 «© © © © © © © © 82 oe 6 & US 4

Bees GmaeetM) «4 « «s'est et ew tw et ee Ey SD

ee eee oie) . . « « « «by 3 Oy oe 38

IRC, §7421 . eM a 2: wate te. “eee is 24:6

MISCE EOUS

CITATION PAGE

Rule 40(a), Federal Rules

Of Appellate Procedure ....... . 2

Rule 65(a)(2), Federal

Rules of Civil Procedure .. i, 3, 13, 19

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

WILLIAM C. BLANKSTYN

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Petitioner, William C. Blankstyn,

hereby Petitions this Court for its Writ of

Certiorari to review the judgment of the

United States Court of Appeals for the Ninth

Circuit entered in this case on February 22,

1993.

OPINION OF THE COURT BELOW

Both the eniniek of the Ninth Circuit

Court of Appeals and the United States

District Court in Arizona were unpublished

opinions and are included in the separate

Appendix filed with this petition.

JURISDICTION

On February 22, 1993, the Court of

Appeals for the Ninth Circuit entered its

judgment (Appendix A) affirming in part and

reversing in part the judgment of the United

States District Court for the District of

Arizona (Appendix C).

On March 5, 1993, the Petitioner filed

a Petition for Rehearing within the time

permitted by Rule 40(a), Federal Rules of

Appellate Procedure (FRAP).’ The Court

1/ Rule 40. Petition for Rehearing.

(a) Time for Filing; Content;

Answer; Action by Court if Granted. A

petition for rehearing may be filed

within 14 days after entry of judgment

unless the time is’~ shortened or

enlarged by order or by local rule.

(in part)

denied the Petition on May 12, 1993. The

Jurisdiction of this Court to review the

judgment of the Court of Appeals by writ of

certiorari is invoked under the provisions

Of 28 USC, §1254(1).

STATUTORY PROVISIONS INVOLVED

The following statutes, regulations and

rules involved, are IRC, §§6212(a), 6213 anda

7421(a) and Rule 65(a)(2), FRCP, and are

stated below.

Sec. 6212. Notice of Deficiency.

(a) In general.

If the Secretary determines

that there is a deficiency in

respect of any tax imposed by

subtitle A or B or Chapter 41, 42,

43 or 44, he is authorized to send

notice of such deficiency to the

taxpayer by certified mail or

registered mail.

Sec. 6213. Restrictions applicable

to deficiencies; petition to Tax

Court => ae

(a) Time for filing petition and

restriction on assessment

"Within 90 days...after a

Notice of Deficiency authorized

under Section 6212 is mailed...the

taxpayer may file a petition with

the United States Tax Court for a

redetermination of the deficiency.

3

Except as otherwise provided in

Section 6851 or 6861, no

assessment of a deficiency in

respect of any tax..., and no

levy or proceeding in Court for

its collection shall be made,

until such notice has_ been

mailed,... nor until the

expiration of the 90-day...

period... Notwithstanding the

provision of Section 7421(a), the

making of an assessment or the

beginning of such proceedings or

levy during the time such

prohibition is in force may be

enjoined by a proceeding in the

proper court including the Tax

Court." (in part)

Sec. 7421. Prohibition of suit to

restrain assessment or collection.

(a) Tax.

Except as provided in

sections 6212(a) (c), 6213(a),

6672(b), 6694(c), and 7426(a) and

(b)(1), and 7429(b), no suit for

the purpose of restraining the

assessment or collection of any

tax shall be maintained in any

court by any person, whether or

not such person is the person

against whom such tax was

assessed.

Rule 65. Injunctions.

(a) Preliminary Injunction.

(2) Consolidation of Hearing

With Trial on Merits. Before or

after the commencement of the

hearing of an application for a

4

ee ee

preliminary injunction, the court

may order the trial on the action

on the merits to be advanced and

consolidated with the hearing of

the application. Even when this

consolidation is not ordered, any

evidence received upon an

application for a preliminary

injunction which would be

admissible upon the trial on the

merits becomes part of the record

on the trial and need not be

repeated upon the trial. This

Subdivision (a)(2) shall be

construed and applied as to save

to the parties any rights they may

have to trial by jury.

STATEMENT OF THE CASE AND FACTS

On or about January 2, 1990, the

Petitioner received two (2) Notices of

Proposed Adjustment (30-day letter) which

made proposed adjustments in income taxes

due for the years 1985 and 1986. On or

about April 20, 1990, the Petitioner

received what purported to be a Notice of

Deficiency, issued by the Director of the

Ogden Service Center in the name of the

Commissioner of Internal Revenue Service,

dated March 26, 1990. The Notice was only

for the year 1986. The Petitioner timely

filed a Petition to the United States Tax

Court with respect to the 1986 Notice of

Deficiency. The Petitioner did not receive

c ___the Notice of Deficiency for the year 1985.

On March 23, 1990, the Petitioner wrote

to one Marc Garcia’? and asked him if the

Notice of Deficiency for the year 1985 was

going to issue and if the Notice had issued

why hadn’t the Petitioner received it. The

Petitioner received no response to this

letter. On December 23, 1990, the

Petitioner, via a request under the Freedom

of Information Act (FOIA), requested a copy

of his Examination Administration File and

other documents for the year 1985.

On or about January 7, 1991, tke

Petitioner received a Final Notice and

Demand (Notice of Intent to Levy) from the

Ogden Service Center for taxes that were

2/ Marc Garcia was identified as _ the

person to contact with respect to both

30-day letters and the 1986 Notice of

Deficiency.

6

alleged to have been assessed for the year

1985. On or about January 10, 1991, the

Petitioner wrote to Mr. Robert Wenzel,

Director, Ogden Service Center and informed

him that the Petitioner had not received the

Notice of Deficiency for the year 1985.

On January 23, 1991, the Petitioner

received a partial response to his FOIA

request. The disclosure officer denied the

request for the Examination Administration

File because 1985 was involved in a law

enforcement proceeding in the United States

Tax ‘Court. The Petitioner appealed the

denial of the records on February 26, 1991.

On or about February 14, 1991 a Notice

of Levy on Wages Salary and other income

[Form 668-W(C)] was sent from the Automated

Collection Branch of the Internal Revenue

Service in Denver, Colorado to KPNX

Broadcasting Company. KPNX did not inform

the Petitioner of the Notice of Levy until

March 5, 1991 as the Notice had been sent to

the wrong address.

On March 13, 1991, the Petitioner

telephoned Automated Collection in Denver.

He discussed the matter with a Mrs. Sexton.

She suggested that the Petitioner go to the

local Phoenix District Office and discuss

the problem with someone there. On March

15, 1991, the Petitioner went to the Phoenix

Office and talked with a Mel Stewart. He

showed Mr. Stewart the correspondence, the

FOIA and the response to the request.

Mr. Stewart contacted Ogden and told

the Petitioner that the Notice of Deficiency

had issued and that it was in the "Audit

File." Mr. Stewart told the Petitioner,

that because he had allegedly failed to file

his returns for 1989 and 1990, that neither

he nor the Collections Department would take

any action to remove the Notice of Levy that

had been served upon KPNX.

On March 18, 1991, the Petitioner

discussed the matter -with Mark Ashby,

Assistant United States Attorney, District

of Arizona. Mr. Ashby suggested that the

Petitioner discuss the matter with the

Assistant District Counsel that was handling

the Petition to the United States Tax Court

for the 1986 Notice of Deficiency.

On March 19 and 20, 1991, the

Petitioner called and talked with Mr. Andrew

J. Horning in the district Counsel’s Office.

He told the Petitioner to bring copies of

all of the documents and he would see what

he could do. On March 21, 1991, the

Petitioner took the documents to Mr. Horning

under a cover letter which outlined the

matter for him. The letter also informed

him that if he would not have the IRS

voluntarily restrain themselves from Levying

upon the Petitioner’s property, by 9:00 AM,

March 22, 1991, an action seeking a

permanent injunction would be filed

accompanied by an application for. a

temporary restraining order.

On March 22, 1991, the Petitioner again

called Assistant United States Attorney,

Mark Ashby. He was referred to Assistant

United States Attorney Janet Patterson as

Mr. Ashby was out of town. The Petitioner

told Ms. Patterson that district Counsel

would not have the IRS voluntarily restrain

themselves. The Petitioner also gave her

verbal notice that he would seek a Temporary

Restraining Order without further Notice to

the United States Attorney’s Office.

Later that same day, the Petitioner

again called Mr. Horning. Mr. Horning told

the Petitioner that the envelope, with the

1985 Notice of Deficiency still in it, had

been found. The envelope was unopened and

had been returned by the Postal Service

marked. “unclaimed." Mr. Horning told the

Petitioner that his problem was with the

Postal Service and not the IRS.

10

—

ere

On March 25, 1991, the Petitioner filed

his complaint in the United States District

Court for the District of Arizona seeking a

temporary restraining order, a preliminary

injunction and a permanent injunction to

enjoin the Respondent from levying on the

Petitioner’s property to collect taxes

alleged to have been assessed for 1985. The

Petitioner also sought damages for the

unauthorized disclosure of return and return

information, in violation of IRC, §7431. °

The Petitioner invoked the jurisdiction

of the district Court pursuant to the

provisions of 28 USC, §§1331, 1340 and 1346

and IRC, §§6213(a) and 7431.

On March 26, 1991, the district Court

denied the Petitioner’s application for the

Temporary Restraining Order, and set a

hearing on the Petitioner’s Motion for a

3/ The unauthorized disclosure claims a

not a part of this petition as the

Court of Appeals reversed the district

Court’s dismissal of those claims and

remanded back for further proceedings.

11

Preliminary Injunction. On April 19, 1991,

the hearing was held.

At the hearing, the testimony of the

Respondent’s witnesses and the evidence

showed that the Notice of Deficiency for the

year 1985 had been mailed but was returned

to the IRS by the Postal Service marked

"unclaimed." The Petitioner’s uncontro-

verted testimony (See Appendix E), showed

that even though he had received the Notice

of Deficiency for the year 1986, the Postal

Records showed that the Notice for 1986 had

been returned "unclaimed."

After the hearing the district Court

granted the Petitioner’s Motion for the

preliminary injunction. The Court further

ordered the Parties to submit supplemental

memoranda on whether the Petitioner could

have filed a petition to Tax Court, without

actual knowledge of the existence of or the

possession of the 1985 Notice, in light of

his receipt of the 1986 Notice, where delay

12

————

in the delivery of the 1985 Notice was not

the fault of the Petitioner.

On April 22, 1991, the Parties

submitted their supplemental memoranda. On

April 30, 1991, the Court entered its final

judgment, vacated the preliminary injunction

and dismissed the action. In its Order, the

Court stated that it was advancing the trial

on the merits and consolidating it with the

hearing on the preliminary injunction under

the provisions of Rule 65(a)(2), FRCP. No

previous notice had been given.

On May 14, 1991, the Petitioner filed a

Motion for a New Trial or in the Alternative

a Motion to Alter or Amend the Judgment. On

July 24, 1991, the Court denied the Motion.

On September 18, 1991, the Petitioner

filed his Notice of Appeal. On February 22,

1993, the Court of Appeals rendered its

judgment affirming the district cCourt’s

dismissal of the injunction claims and

reversing the district Court’s dismissal of

13 :

the unauthorized disclosure claims’ and

remanded the action for further proceedings.

ARGUMENT

I. THE DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

WITH RESPECT TO THE DENIAL OF THE

PERMANENT INJUNCTION IS IN CONFLICT

WITH THE DECISIONS OF SEVERAL OTHER

UNITED STATES COURTS OF APPEAL

AND IS AN IMPORTANT QUESTION OF

FEDERAL LAW WHICH HAS NOT BEEN,

B SHO Cc

The Appellate Court found that the

Petitioner was not entitled to injunctive

relief under the provisions of IRC, §6213(a)

because the evidence showed that Internal

Revenue Service properly mailed the Notice

of Deficiency. The Appellate cCourt’s

decision failed to consider the Petitioner’s

uncontroverted testimony that tended to

indicate that the Petitioner’s non-receipt

of the Notice was caused by circumstances

beyond the control of the Petitioner.

The testimony tended to show that it

was the Postal Service that mishandled the

1985 Notice, resulting in Petitioner’s non-

14

receipt. The testimony showed that even

though he did receive the Notice of

Deficiency for 1986, which had been mailed

on the same date‘ as the 1985 Notice, Postal

Service records showed that the 1986 Notice

had also been returned "unclaimed", the same

condition the Postal Service Claimed in the

return of the 1985 Notice.

In failing to consider this uncontro-

verted testimony the Appellate Court ignored

decisions from other circuits that had held

that "[wjhen evidence indicates that a

notice of deficiency has not been received

by the taxpayers due to error of the Postal

Service the notice shall be found to be

insufficient. POWELL _v. C.I.R., 958 F.2a

53, 58 (4th Cir., 1992); MCPARTLIN v. UNITED

STATES, 653 F.2d 1185, 1191 (7th Cir...

(1981). See also KEADO v. UNITED STATES,

853 F.2d 1209, 1212 n.9 (Sth Cir., 1984)

(Claim of non-receipt of Notice of

4/ March 26, 1990.

15

Deficiency by Keado’s may have _ been

considered had they filed a Petition to Tax

Court within 90 days after becoming aware of

the Notice of Deficiency).

Even the Tax Court has found that

notice is insufficient when evidence shows

that non-receipt of the Notice was the

result of Postal Service error. PYyO v.

COMMISSIONER, 83 TC 626, 639 (1984);

MULVANIA v. COMMISSIONER, 81 TC 65, 70

(1983) ["If mailing does not result in

actual notice of a tax deficiency, because

‘the notice is sent to the wrong address and

never delivered, or delivered with

prejudicial delay, the statutory purpose is

not served and it would be manifestly unfair

to deny the taxpayer his’- prepayment

hearing.’" (emphasis added) }. The

Petitioner submits that his uncontroverted

testimony shows that the non-receipt of the

Notice was caused by the Postal Service and

that the 90-day period to Petition the

16

United States Tax Court did not begin, if it

were to begin to run at all until he

actually received the notice.’

At no time did the district court or

the appellate Court address the Petitioners’

uncontroverted testimony or otherwise

attempt to distinguish the above cited

authorities from the circumstances of this

case. The appellate Court refused to

acknowledge that the Petitioner’s non-

2/ ‘The Petitioner first received the

Notice of Deficiency for 1985 on April

13, 1991. It was attached as an

exhibit in the United States’ response

to the Motion for Preliminary

Injunction filed by the Petitioner in

the district Court. The Petitioner

filed a Petition with the United States

Tax Court on July 10, 1991. It was

dismissed on January 31, 1992. The

Petitioner Subsequently appealed to the

Ninth Circuit Court of Appeals which

affirmed the dismissal on March 19,

1993. The Petition for Rehearing was

denied on June 4, 1993. Petition for a

Writ of Certiorari in that action must

be filed with this Court no later than

September 2, 1993. Once it is filed

and both this and the other Petition

are docketed, the Petitioner will move

this Court to consolidate then.

17

receipt of the Notice of Deficiency was

beyond the control of the Petitioner.

In POWELL, supra, the Commissioner

Petitioned this Court for a Writ of

Certiorari. Despite the Commissioner’s dire

warning that the Fourth Circuit’s ruling

would "seriously impede the ability of the

United States to collect taxes from the vast

numbers of taxpayers who change their places

of residence..." this Court denied

certiorari to the Commissioner on November

2, 1992. See COMMISSIONER OF INTERNAL

REVENUE v. POWELL, 121 L.Ed.2d 359, 113

“S.Ct. 440 (1992). As a result of the Ninth

Circuit’s judgment in this case it has

placed itself in conflict with POWELL, and

MCPARTLIN, supra, and the Tax Court.

Accordingly, and for the foregoing

reasons, this Court should grant’ the

Petition for Writ of Certiorari to the Ninth

Circuit Court of Appeals.

18

|

II. THE FAILURE OF THE DISTRICT COURT

TO GIVE NOTICE TO THE PARTIES BEFORE

IT ADVANCED THE TRIAL ON THE MERITS

AND CONSOLIDATED IT WITH THE HEARING

ON THE PRELIMINARY INJUNCTION, UNDER

THE PROVISIONS OF RULE 65(a)(2), FRCP

IS IN CONFLICT WITH THE APPLICABLE

DECISIONS OF THIS COURT

The Court of Appeals declined to decide

this issue because of its disposition of the

case. (See Appendix A, Footnote 2). In its

April 30, 1991 Order (See Appendix C), the

district Court indicated for the first time

that it was going to advance the trial on

the merits and consolidate it with the

hearing on the preliminary injunction. The

Court gave neither oral nor written notice

to the parties before it advanced and

consolidated.

The Petitioner raised the issue of lack

of notice in his Motion for New Trial or in

the Alternative Motion to Alter or Amend

Judgment. It was this Motion that the Court

of Appeals declined to decide, thus,

avoiding altogether the issue of the

19

district Court’s failure to give Notice

before it advanced and consolidated.‘

The Appellate Court’s' refusal _ to

address the district Court’s lack of notice,

before it advanced and consolidated, left

the Court in conflict with this Court in

UNIV Y TEXAS v. C H, €51 US

390, 395, 68 L.Ed.2d 175, 101 S.Ct. 1830

6/ Despite the fact that the Appellate

Court declined to discuss the Motion

for New Trial, in coming to it’s

conclusions concerning the

unauthorized disclosure claims, the

Appellate Court found that the 23C

(Summary Record of Assessment) by

itself was insufficient to prove the

validity of the assessment. The

presentation of the 23C as evidence

and the need for further discovery was

raised in the Motion for a New Trial.

Although the issues were fully briefed

in Arguments III and IV of in the

Appeals Brief, the source of the

evidence and issues arose from the

Rule 59(e), FRCP, Motion filed in the

district Court. The Petitioner

submits that Appellate Court should

have consider the merits of the 59(e)

Motion, once it began using evidence

presented with it. By refusing to

address the 59(e) Motion the Appellate

Court avoided the Motion’s’- full

ramifications concerning the district

Court’s advancement and consolidation

without notice.

20

(1981). The Ninth Circuit’s decision was

likewise in conflict with other Appellate

Court’s wherein the lack of notice raised

serious questions of constitutional due

process. G N_ v. STATE MAR D, 538

F.2d 603 (4th Cir., 1975); NN v. S JUAN

HO AL, 528 F.2d 1181 (10th Cir., 1975).

Furthermore, the Ninth Circuit’s

decision in this case left it in conflict

with itself in AIR LINE PILOTS’ ASS’N,

INTERN. v. ALASKA AIRLINES, INC., 898 F.2d

1393, 1397 (9th Cir., 1989) holding that

this Court’s opinion in CAMENISCH, was

controlling for the notice requirement.’ In

AIR LINE PILOTS’, the lack of Notice, before

7/ It is important to note that there was

no dispute from the Parties that the

district Court had the discretion to

advance and consolidate. The dispute

arose concerning the Court’s

requirement to give notice before it

exercised the discretion to advance and

consolidate. The district Court’s

refusal to give notice and the

Appellate Court’s refusal to decide the

issue is in conflict with the decisions

of this Court.

21

advancement and consolidation, was at issue

and was part of the basis for the Ninth

Circuit’s remand back to the district Court.

The Respondent refused to show how AIR LINE

PILOTS’ was distinguishable from this case

in both district Court of the Appellate

Court. The district Court likewise declined

to distinguish the case in its order denying

the Motion for New Trial (Appendix D). The

Appellate Court simply refused to render any

opinion at all on the issue as raised.

The purpose of the notice is to afford

all parties of the opportunity to present

all of the evidence before the Court rules

on the merits, which includes affording the

Parties an opportunity to engage in

discovery in aid of the presentation of

evidence. ABRAHAM ZION CORP. v. LEBOW, 761

F.2d 93, 101 (2nd Cir., 1985); AIR LINE

PILOTS’, supra, at 1397-98.

If this Court is unable to reach a

conclusion for the issue raised in Argument

22

ie

I because the record does not reflect

sufficient testimony and evidence to show

that it was Postal Service error in the

delivery of the 1985 Notice of Deficiency

this Court should return this action to the

lower Courts due to lack of Notice before

the district Court advanced and

consolidated. The Notice that should have

been given by the district Court, would have

provided the Petitioner the opportunity to

inform the Court that he needed more time

for discovery to marshall the necessary

evidence to support Argument I above.

Accordingly, and for the foregoing

reasons, this Court should grant’ the

Petition for Writ of Certiorari to the Ninth

Circuit Court of Appeals.

CONCLUSION

As a result of Postal Service error the

Petitioner did not receive the Notice of

Deficiency for the year 1985. The Notice

was returned to the IRS, by the Postal

23

eee

Service, marked "unclaimed." The evidence

showed that despite the fact that the

Petitioner received the 1986 Notice of

Deficiency, which was mailed the same day as

the 1985 Notice of Deficiency, the Postal

Records for the 1986 Notice of Deficiency

also showed that it had been sent back to

the IRS "unclaimed."

The Petitioner brought an action for

injunctive relief because he did not weanive

the 1985 Notice. The district Court granted

the Petitioner’s Motion for Preliminary

Injunction. When it subsequently dismissed

the action, the district Court advanced the

trial on the merits and consolidated it with

the hearing on the preliminary injunction,

without notice to the parties. The Court of

Appeals refused to even address the issue of

Notice on appeal due to its disposition of

the injunction claims. The Notice would

nave afforded the Petitioner the opportunity

to inform the Court that further discovery

24

waS necessary, should it be found that the

record is insufficient to show that the

Postal Service erred in mailing the Notice

of Deficiency.

Accordingly, and for the foregoing

reasons, this Court should grant’ the

Petition for Writ of Certiorari to the Ninth

Circuit Court of Appeals. “th

RESPECTFULLY SUBMITTED this Ss day

of August, 1993.

ae Qe

\\\

WILLIAM C. BLANKSTYN

16213 South 35th Street

Phoenix, Arizona 85044

(602) 759-9024

Petitioner, In Propria Persona

25