Writ of Cert.

No. __________ 
________________________________________ 
SUPREME COURT OF THE UNITED STATES 
_________________________________ 
Christian S. 
Petitioner 
v. 
Commissioner of Internal Revenue 
Respondent 
_____________________________________________ 
ON PETITION FOR A WRIT OF CERTIORARI 
TO THE 
UNITED STATES COURT OF APPEALS 
FOR THE FOUTH CIRCUIT 
______________________________________________ 
PETITION FOR WRIT OF CERTIORARI 
______________________________________________ 
Christian S. 
Pro Se 
Spout Sprig, VA 24593

Whether the United States Court of Appeals for the Fourth Circuit erred by sanctioning the lower courts’ denial of a Collection Due Process Hearing; the very hearing that the Tax Court had normally been imposing under IRC § 6320 and is essential for compliance with the due process clause of the Fifth Amendment to the Constitution.

The JUDGMENT of the United States Court of Appeals for the Fourth Circuit filed June 2, 2009 states: “In accordance with the order of this Court, the judgment of the Tax Court is affirmed. Decided: June 2, 2009. Unpublished”. The Case numbers are: Court of Appeals 08-2290, Tax Court 06-9348. Appendix XXX

The ORDER of the United States Court of Appeals for the Fourth Circuit filed September 1, 2009 states: “The Court denies the petition for rehearing and rehearing en bank”. Appendix XXX

The MANDATE of the United States Court of Appeals for the Fourth Circuit filed September 9, 2009 states: “The judgment of this Court, entered 6/2/09 takes effect today”. Appendix XXX

The Order sought to be reviewed was filed June 2, 2009. A copy of the Judgment is provided with Appendix XXX.

The ORDER of the United States Court of Appeals for the Fourth Circuit filed September 1, 2009 states: “The Court denies the petition for rehearing and rehearing en bank”. Appendix XXX

The Fifth Amendment to the United States Constitution reads in relevant part: “No person shall be … deprived of… property, without due process of law…”

2. Congress particularized due process by specifying that a fair Collection Due Process Hearing must be provided:

IRC § 6320 (b) is titled “Right to fair hearing” and
IRC § 6320 (b)(1) reads in relevant part: “… such a hearing shall be held by the Internal Revenue Service Office of Appeals.”

IRC § 6320 (c)(2)(A) reads in relevant part: “The person may raise at the hearing any relevant issue …”

(i) appropriate spousal defenses;
(ii) challenges to the appropriateness of collection action; and
(iii) offers of collection alternatives, which may include the posting of a bond, the substitution of other assets, an installment agreement, or an offer in compromise.

This is a Collection Due Process Hearing case under the Fifth Amendment to the Constitution and IRC §6320 / §6330. Under this law, passed in 1998 as part of the IRS Reform and Restructuring Act, all collection activities are deferred until the taxpayer has a Collection Due Process Hearing.

The Fifth Amendment to the United States Constitution reads in relevant part: “No person shall be … deprived of… property, without due process of law…”

Congress in IRC § 6320 (b) particularized due process by specifying a “Right to fair hearing” and specifying in IRC § 6320 (b)(1) that “… such a hearing shall be held by the Internal Revenue Service Office of Appeals.”

The Tax Court has generally been ordering the IRS to comply with those affirmative laws. An example is provided here.

“As a preliminary matter, it appears to the Court that (IRS’) Appeals Officer Keeley acted prematurely in labeling as frivolous and groundless the issues raised in petitioner’s hearing request.”

“ORDERED that this case is remanded to respondent’s Appeals Office for the purpose of affording petitioner a face-to-face administrative hearing pursuant to section 56330 (IRC § 6330) for the purpose of discussing any valid issue * * * that petitioner may present.” Thomas Wane Marett v. CIR, Order by Washington DC Tax Court Docket No. 4048-061, July 7, 2006, page 4, near top and near bottom of page.

However, in appellant’s case, in a drastic departure from lawful and established procedure, the IRS and the lower courts denied a statutory Collection Due Process Hearing.

“There is no dispute that petitioner requested and was denied a face-to-face hearing.” Order and Decision by the Washington DC Tax Court docket No 9348-06L, Sep. 10, 2008, page 2, near top. Appendix XXXX

“The person may raise at the hearing any relevant issue * * * “ IRC § 6330(c)(2)(A)

By denying a hearing, the IRS also pre-empted a ripening of issues into a court-actionable controversy.

“The injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy “ripe” for judicial resolution. Abbot Laboratories ET AL. v. Gardner, Secretary of Health, Education and Welfare, ET AL. 387 U.S.136, 148 below center (1967).

The IRS used three distinct “under color of law” schemes in support of their denial of a hearing:

A. The IRS declares as “frivolous”, petitioner’s standard issues to be resolved and denies a hearing.

A . THE IRS DECLARES AS “FRIVOLOUS”, PETITIONER’s STANDARD ISSUES TO BE RESOLVED AND DENIES A HEARING

To start, petitioner requests a hearing, listing only accepted issues to be resolved, namely:

“I request collection alternatives including OIC (Offer In compromise) and payment schedule. Collection actions are inappropriate. Procedural defects by the Internal Revenue Service exist. I want to see copies of the 90-day letter, Notice and Demand Letter (Form17-A), also Summary Record of Assessment (Form23-C) and proof that they were sent. I contest the existence or the amount of the tax, because I did not receive a Notice of Deficiency. I also request proof of verification from the Secretary that all applicable law and administrative procedures have been met pursuant to IRC § 6330. I am also notifying the Service of my intention to make an audio recording of the hearing pursuant to IRC §7521.” Petitioner’s Request for a Collection Due Process Hearing, Form 12153, dated Oct. 11, 2005, center of page. Appendix XXXX

The IRS responds with a four-step, under color of law scheme to deny petitioner a statutory hearing.

First, IRS’ Appeals Office declares petitioner’s standard issues as frivolous.

“The items that you mention in your CDP (Collection Due Process Hearing) request are items that: 1. Courts have determined are frivolous (!) or groundless or 2. (IRS’) Appeals (Office) does not consider. These are moral, religious, political, constitutional, conscientious, or similar grounds.” Response, to petitioner’s request for hearing, by IRS’ Appeals Office dated February 3, 2006, page 1, center of page. Appendix XXXX

Having manufactured petitioner’s standard issues, into frivolous ones, the Office refuses to resolve those “frivolous” issues, by denying a statutory Collection Due Process Hearing.

“Appeals does not provide a face-to-face conference if the only items you wish to discuss are those (frivolous issues) mentioned above.” Response, to petitioner’s request for hearing, by IRS’ Appeals Office dated February 3, 2006, page 1, near bottom.

Petitioner gave the IRS’ Appeals Office the opportunity to support their claim that standard issues are frivolous.

“In your letter dated Feb. 3. 2006, you (IRS’ Appeals Office) stated that the items listed on my CDPH request are frivolous. At the CDPH (Collection Due Process Hearing), I will ask you to show me your derivation of that conclusion”. Letter to IRS’ Appeals Office, April 3, 2006, page 1, near bottom.

In the same letter, petitioner provided one more non-frivolous reason for a statutory, face-to-face Collection Due Process Hearing. Petitioner asked for assistance in devising the Offer In Compromise listed in his request for a hearing.

“At the CDPH you will be asked to show me how I can make an OIC (Offer In Compromise) in view of the inconsistent positions the IRS has been communicating to me.” Letter to IRS’ Appeals Office, April 3, 2006, page 1, below center.

Second, based on the claimed absence of non-frivolous issues, the Tax Court feigns authority to render a summary judgment.

“Resolution by summary judgment is appropriate if the pleadings, answers to interrogatories, depositions, admissions, and other acceptable materials, together with affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law. Rule 121; Sunstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F. 3d 965 (7th Cir. 1994)” Tax Court’s Order and Decision, Sept. 10, 2008, first page, below center. Appendix XXXXX

By claiming absence of issues, the Tax Court ignores those issues that could be raised at a hearing.

“The person may raise at the hearing any relevant issue …” IRC § 6320 (c)(2)(A)

Further, the Tax Court ignores stare decisis. In prior Tax Court cases the Tax Court denied to execute a summary judgment that would have been based on standard issues labeled “frivolous”.

“Summary judgment under Rule 121 is appropriate when there is no genuine issue * *. ”

“ * * , we conclude that petitioner did not raise only frivolous arguments. Petitioners raised issues properly within the scope of a CDP hearing, such as collection alternatives and spousal defense.”

“ORDERED that respondent’s Motion for Summary Judgment, * * , is denied * *. “

“ORDERED that respondent shall offer petitioners an administrative hearing at respondent’s Appeals Office located closest to petitioners’ residence * * “

John C. & Trudy Shell v. CIR, Washington DC, docket 20188-05L, Decision by Chief Special Trial Judge, May 31, 2006, page 3 top, page 4 near bottom and page 5 above center and at center.

Third, the Tax Court renders a summary judgment “in accordance with the law”, but actually, by denying the statutorily mandated hearing, the Tax Court acts against the law.

“Ordered and Decided that respondent may proceed with collection as set forth in the Notice of Determination.” Order and Decision by Tax Court at Washington, D.C., docket No. 9348-06L, Sept. 10, 2008, page 3, top. Appendix XXXXX

Fourth, respondent’s attorney for the United States Court of Appeal expands the range of the claim “frivolous”. He starts by repeating the prior claim of “absence of non-frivolous issues”:

“The (IRS’) Appeals Officer responded that taxpayer had failed to designate any non-frivolous issues.” Informal brief for the appellee, United States Court of Appeals for the Fourth Circuit No. 08-2290, Dec. 22, 2008, page 5, third line.

Then he makes the all-inclusive claim that any issue petitioner would bring up at a hearing would be frivolous.

“* * * the instant taxpayer, who seeks to raise only frivolous arguments will not be granted a face-to-face (statutory) hearing.” Informal brief for the appellee, United States Court of Appeals for the Fourth Circuit No. 08-2290, Dec. 22, 2008, page 5, second line.

By stating that issues yet to be discovered will be frivolous also, the attorney renders a due process statute moot:

“The person may raise at the hearing any relevant issue …” IRC § 6320 (c)(2)(A)

With the elimination of every issue, the attorney feigns legitimacy of the summary judgment.

“Resolution by summary judgment is appropriate if * * * there is no genuine issue * * * ” U. S. Tax Court, docket 9348-06L, Order and Decision, Sept. 10, 2008, page 1, below center.

Another “argument” used by each of the respondents is that, a hearing is not required to be in person.

IRS’ “Appeals Office does not provide face-to-face conferences if the only items you wish to discuss are those mentioned above (items the Office had declared to be frivolous).” IRS’ response to petitioner’s request for a statutory hearing, February 3, 2006, near bottom.

“There is no dispute that petitioner requested and was denied a face-to-face hearings. It is equally clear that, under the circumstances, petitioner was not entitled to a face-to-face hearing. * * * A CDP (Collection Due Process) hearing may, but is not required to, consist of a face-to-face hearing * * * .‘ Sec. 3016330-1 (d)(2)” Tax Court docket 9348-06L, Order and Decision, entered Sept. 10, 2008, page 2 above center.

Respondent advanced said conditional, not applicable, regulation despite Petitioner’s prior presentation of cogent and affirmative rulings, like:

“Petitioner asked for a face-to-face CDPH. The Chief Judge of the US Tax Court ruled in Shell v. CIR, docket # 20188-05L on May 31, 2006 that IRC 6330 requires an in person hearing in CDPH cases if petitioner requests such.” US Tax Court Docket #9348 Petitioner’s Opposition to Respondent’s Motion for Summary Judgment, June 16, 2008, page 3 center.

“Petitioner asked that the CDPH be tape recorded. The Tax Court ruled, that all tape recorded CDPH must be in person. Dominic Calafati v. CIR, Dec. 2006, Docket N 17529_03L” US Tax Court Docket #9348 Petitioner’s Opposition to Respondent’s Motion for Summary Judgment, June 16, 2008, page 3 center.

“Common sense also dictates that a show and tell exchange be conducted in person.” US Tax Court Docket #9348 Petitioner’s Opposition to Respondent’s Motion for Summary Judgment, June 16, 2008, page 3 center.

“Hearing: a proceeding of relative formality at which evidence and arguments may be presented- - - Merriam-Webster’s Dictionary of Law 1996.” US Tax Court Docket #9348 Petitioner’s Opposition to Respondent’s Motion for Summary Judgment, June 16, 2008, H, page 2, top.

“Hearing: A proceeding of relative formality (though less formal than a trial), generally public, with definite issues of fact or law to be tried, in which witnesses are heard and evidence presented. Black’s Law dictionary, Sixth Edition.” US Tax Court Docket #9348 Petitioner’s Opposition to Respondent’s Motion for Summary Judgment, June 16, 2008, H, page 2, top.

“Every taxpayer who makes a timely CDP (hearing) request is entitled to an opportunity for a hearing. Office of Chief Counsel, Department of the Treasury, Internal Revenue Service, Washington, D.C. 20224, 8/16/2002.” US Tax Court Docket #9348 Petitioner’s Opposition to Respondent’s Motion for Summary Judgment, June 16, 2008, H, page 2, near the top.

Yet another “argument” used by the respondents is that, Petitioner was given a substitute “hearing”.

“Petitioner was not denied an administrative hearing. The hearing consisted of ‘ written or oral communications * * * or some combination thereof ‘ between petitioner and the settlement officer.” Tax Court docket 9348-06L, Order and Decision, entered Sept. 10, 2008, page 2 at bottom, note 3.

There, the Tax Court claims that a hearing took place, but does not specify the kind of “hearing”.

There was no telephonic contact between petitioner and the settlement officer as the IRS’ Appeals Office correctly states:

“As of this date, you have neither attended a telephone(ic) hearing * * *“ Notice Of Determination, April 18, 2006, page 6, below center.

There could not have been a meaningful hearing by correspondence either. After the IRS’ Appeals Office had declared petitioner’s standard issues as frivolous, there could not have been, nor was there a correspondence hearing. Further, star decisis requires not just a hearing, but a meaningful hearing.

“A fundamental requirement of due process is ‘the opportunity to be heard.’ Grannies v. Ordean, 234 U.S. 385, 394. It is an opportunity which must be granted at a meaningful time and in a meaningful manner. U.S. Supreme Court, Armsrong v. Manzo, 380 U.S., 545. 552 top (1965)

Thus, the evidence convicts the IRS of a having made a determined effort to deny petitioner a statutory collection due process hearing. Those actions also violate IRS’ mission statement:

“Provide America’s taxpayers top quality service by helping them understand and meet their tax responsibilities and by applying the tax law with integrity and fairness to all.” 1040 Forms & Instructions, 2008, page 2, bottom.

The court of original instance, the U.S. Tax Court at Washington, DC, had jurisdiction under IRC § 6330.

A. Avoiding implosion of tax system
B. Safeguarding judiciary’s integrity
C Support for sound national economy

I. THIS IS A FIRST IMPRESSION ISSUE
Heretofore, the Tax Court adhered to law.

The Fifth Amendment to the United States Constitution demands due process. “No person shall be … deprived of… property, without due process of law…” Congress particularized due process at IRC § 6330 that orders the IRS’ Appeals Office to provide petitioner a Collection Due Process Hearing.

On some prior occasions IRS’ Appeals Office also posited that there are no non-frivolous issues to be discussed and on that ground denied a hearing. The Tax Court then ruled the action “abuse of discretion” and corrected the error by remanding the case. Two examples follow:

“ORDERED that respondent’s Motion for Summary Judgment, * * , is denied * *. “

“ORDERED that respondent shall offer petitioners an administrative hearing at respondent’s Appeals Office located closest to petitioners’ residence * * “

John C. & Trudy Shell v. CIR, Washington DC, docket 20188-05L, Decision by Chief Special Trial Judge, May 31, 2006, page 4 near bottom and page 5 above center and at center.

In petitioner’s case, the lower courts did not correct the erroneous presumption of absence of issues, but did a “new thing”, namely, the courts confirmed the denial of a hearing. That “new thing”, the denial of a statutory hearing, becomes this “first impression issue” for the Supreme Court.

Three arguments are presented to show the public importance of a Supreme Court ruling that affirms the requirement of statutory hearings:

In the United States, tax collection is all-important for amelioration of inflation.

“*** the value of all the dollars that our trading partners hold is falling (inflation), meaning that the buying power of their dollar reserves are in decline, as well. That’s a problem for many reasons, not the least of which is that their stronger currencies allow them to buy U.S. assets at bargain-basement prices. Indeed, it is already happening, as we see from all the foreign takeovers of U.S. companies, and from Dubai’s recent buyout of New York’s Chrysler Building. Inside Wall Street: The Real Reason The Federal Reserve Can’t Raise Interest Rates by Shah Gilani, Editor, Trigger Event Strategist, Contributing Editor, Monday Morning, Page 3 bottom..http//triggereventstrategist.com/archives/federal reserve.

“The tax is a logical method of inflation control**“ Roy Blough, Director, The Individual Income Tax as a Method of Inflation Control, 7 February 1944, Summary; Located in Box 52; Individual Income Tax Payers; Records of the Office of Tax Analysis/Division of Tax Research; General Records of the Department of the Treasury, record Group 56; National Archives, College Park, MD.

Tax collection requires public support and the public will not support capricious taxing procedures.

“The 1775 Revolution was largely a revolt against growing arbitrary power.” Lost Rights, The Destruction of American Liberty, by James Bovard. ISBN: 0-312-12333-7. http://www.jimbovard.com

The IRS implicitly agrees that public support is important. The IRS curries public support by crafting their mission statement carefully.

“* * applying the tax law with integrity and fairness to all.” 1040 Forms and Instructions 2008, IRS Mission, page 2, bottom.

However, IRS’ denial of a statutory hearing cannot possibly contribute to perceived fairness in tax collection. The disconnect of IRS’ mission and action lies partially in lack of ability. Two examples follow.

“The Tax Court’s finding that the IRS was excused because its own regulations were to ‘complex’ was an abuse of discretion.” U.S. Court of Appeals of the Ninth Circuit, Robert C. McKee; et al. v. CIR, No. 04-74846, filed December 4, 2006, page 2, center.

Commissioner’s “argument is frivolous***“ Tenth Circuit, Lindsey K. Springer v. CIR, No. 08-9004, filed August 31, 2009, page 9, bottom.

To gain the all important public support for the tax collection system, the Supreme Court needs to rule that the constitutionally required hearing is not to be denied.

Knowing the limitations of IRS’ understanding of its own regulations, as well as its missing acumen for law, the courts may not appear to be obsequious to IRS’ demeanor. A viable judiciary rests on the all important public perception of justice provided. Therefore, the Supreme Court needs to rule that the constitutionally required hearing is not to be denied.

A judiciary that condones unlawful actions invites fears over an uncertain economic future and that encourages capital flight.

Mr. Armstrong comments on the fall of the Roman Empire and concludes that, similar, to the U.S., “the rule of law collapses and the self–interest of the state dominates, capital cannot long survive. It flees.” Martin Armstrong, former chairman of Princeton Economics Int’l, Ltd., letter of March 23, 2009, page 4-5

A sound economy is predicated on a sound judicial system, therefore, the constitutionally required hearing is not to be denied.

The United States Court of Appeal for the Fourth Circuit has sanctioned a Tax Court’s decision that violates Statutes and negates part of the Constitution.

“It cannot be presumed, that any clause in the Constitution is intended to be without effect.” Chief Justice Marshall in Marbury v. Madison. 5 U.S. 139, at end of 174 (Cranch I)(1803).

The Fifth Amendment to the United States Constitution demands due process. “No person shall be … deprived of… property, without due process of law…”. Congress particularized due process at IRC § 6330 that orders the IRS’ Appeals Office to provide a Collection Due Process Hearing. However, conflicting with the Constitution, the IRS’ Appeals Office denied a hearing.

The United States Court of Appeal for the Fourth Circuit sanctioned the Tax Court’s judicial procedure that has far departed from accepted and usual course of judicial proceedings.

Heretofore, the Tax Courts remanded cases that were based on IRS’ Appeals Office labeling as “frivolous” the congressionally approved issues. The erroneous “frivolous” label could then be removed and the issues resolved or ripened into actionable controversies.

“ORDERED that respondent’s Motion for Summary Judgment, * * , is denied * *. “

“ORDERED that respondent shall offer petitioners an administrative hearing at respondent’s Appeals Office located closest to petitioners’ residence * * “

John C. & Trudy Shell v. CIR, Washington DC, docket 20188-05L, Decision by Chief Special Trial Judge, May 31, 2006, page 4 near bottom and page 5 above center and at center.

In the instant case, the Tax Court upheld the IRS’ Office of Appeal’s posit, that congressionally approved issues are frivolous.

“ * * there is no genuine issue * * “ Tax Court docket 9348-06L, Order and Decision, Sept. 10, 2008, page 1, below center.

The Tax Court drastically departed from the usual course of judicial proceedings by denying a hearing and is thereby compelling the Supreme Court to exercise its supervisory power. For the under color of law scheme used, see Statement of the Case, on pages XXXXX