Gregory T. Christian, Plaintiff
v.
United States of America /
Internal Revenue Service,
Defendant
Introduction
Plaintiff pursues recovery of wrongfully seized sum, and defendant IRS has
moved for summary judgment on grounds there are no disputed issues of material
fact.
Plaintiff notes at the outset defendant’s belated admission of various
“errors” which provided collective pretense for over 90% of the
sum seized by defendant, something defendant has managed to remain surprisingly
shrill about, and Plaintiff further notes that the very substantial financial
consequence thereby wrongfully imposed upon plaintiff has thus far weathered
unremitted dozens of letters, a claim for refund, a number of years, and two
lawsuits (the first being C/A No. 6:03-3259-26AK). Clearly, if defendant IRS
employees are not in this instance entirely out of control, neither are they
particularly under it.
Plaintiff assumes the Court will as requested award summary judgment to defendant
and direct defendant to submit a proposed judgment reflecting plaintiff’s
“overpayment” for 1998, and as it seems no two documents coming
from defendant contain the same precise rationale for the sum seized, plaintiff
will deal with defendant’s latest claims and further argue details as
they unfold following summary judgment.
For purposes of clarification, plaintiff herein maintains in opposition to
motion for summary judgment two principal points:
1) Plaintiff timely filed a 1998 tax return fully sufficient
to be accepted as such, and which was by virtue of Point 2 not frivolous.
2) Plaintiff is not obliged by the Constitution or federal statutes flowing therefrom to fund by tax remittance federal activities not publicly accounted for per Constitutional mandate. Plaintiff has since filing the present action foregone other Constitutional claims in the matter so as to focus the case on this single question, experience having at length inclined plaintiff toward, if not outright realism, at least a one blade at a time strategy. Plaintiff has thus for some time maintained to opposing counsel plaintiff’s acceptance of all but $21.12 of plaintiff’s 1998 tax liability. Following an initially promising if somewhat confused round of negotiations circling this point, it proved unacceptable.
Background
Plaintiff has for eleven years past deducted from his annual tax payment an amount which plaintiff believes reflects with reasonable accuracy that portion of federal activities conducted outside of or otherwise not in accordance with Constitutional strictures. This quixotic but on the whole comparatively harmless crackpot gesture has with the exception of 1998 always been met with the casual leviathan indifference one could only expect from the IRS, which has simply taken the remainder, along with interest and such occasional civil penalty as might strike the fancy of the particular IRS employee concerned. 1998, however, proved the exception, as in this instance the cognizant employee apparently decided federal law too constraining and that a measure of creativity was called for. In the event, bridled by no more than imagination defendant IRS managed to conflate plaintiff’s outstanding tax bill to an amount some one to two thousand percent beyond what might plausibly have been taken (see defendant’s motion for summary judgment), and then took it. Hence the present action, and the one preceding.
Argument
Defendant IRS most recently maintains plaintiff liable for 1998 tax and penalties
on four counts: a penalty for failure to pay estimated tax , a penalty for
filing a frivolous return, a penalty for negligent failure to file a return,
and a tax of $1514.76.
1. Plaintiff first briefly dispenses with defendant’s claim that plaintiff was liable for a penalty for failure to pay estimated tax for 1998. Defendant’s other “mistakes” being in the thousands while this one is only in the hundreds, plaintiff confesses he has only now noticed its precise nature. “Estimated tax” is something the IRS expects the taxpayer to prepay quarterly based upon “estimated income”, and as plaintiff’s income has for fifteen years past been derived almost entirely from capital gains in the common stock market, and as there is no such thing as “expected income” therefrom, plaintiff has not in the interval paid, nor been held liable for, “estimated tax”. Plaintiff resolved this question in correspondence with the IRS a number of years ago. Should defendant persist in contesting the point, this is a genuine and disputed issue of material fact by right triable before a jury.
2. Defendant’s remaining claims of plaintiff’s
tax liability for 1998 consist of a frivolous return penalty, a negligent
failure to file penalty, and a tax of $1,514.76 (as opposed to plaintiff’s
claim of $1,493.64). Defendant’s claims essentially aggregate to the
single core issue of the legitimacy of plaintiff’s 1998 tax filing.
Absent clear statutory language, defendant posits a four part test for determining
whether a taxpayer has filed a return. Plaintiff’s 1998 tax filing,
like all of plaintiff’s filings since 1994, plainly meets three of the
criteria, and thus defendant argues the fourth, asserting plaintiff “did
not make an honest and reasonable attempt to satisfy the requirements of the
tax law when he reduced his tax liability based on a frivolous position, and
therefore did not file a return for purposes of § 6651.” Plaintiff
takes exception to a government lawyer using the word “honest”
in this circumstance, and with such passing indignation commensurate observes
that plaintiff has been absolutely above board with every word spoken or written
in this matter. Concerning whether plaintiff’s “attempt to satisfy
the requirements of the tax law” was “reasonable”, plaintiff
has certainly stayed within such uniform standard of the word as might be
established by defendant’s conduct in this matter, and in any event
this is an inherently subjective determination constituting a genuine and
disputed issue of material fact by right triable before a jury.
Plaintiff maintains Plaintiff is, under the rudiments of contract law, not
obliged by the Constitution or federal statutes flowing therefrom to fund
by tax remittance federal activities1 not publicly accounted for per Constitutional
mandate2. This admittedly novel theory of direct taxpayer enforcement of
the Constitution by way of withholding a proportion of federal tax has to
plaintiff’s knowledge yet to be subjected to precise legal test, though
Flast v. Cohen (392 U.S. 83, 1968) and US v. Richardson (94 S.Ct. 2940,
1974) are similar and deal with the general question of standing. The cases
cited by defendant deal with conscientious objectors (Lull and Welch) and
corporate loss carry over (New Colonial Ice), and as such do not bear directly
upon the present case.
The question of an individual citizen’s standing to pursue enforcement
of the particular Constitutional mandate at issue was first and last visited
by the Supreme Court in US v. Richardson, wherein a 5-4 majority ruled
in the negative. In short, the majority opinion was convoluted and unconvincing,
the dissenting opinion simple and compelling (A owes a duty to B). In a view
consistent with the Constitution as ornament, appropriate for festooning the
spreading branches of power so long as the roots remain untouched, the majority
opinion, while not denying the underlying merits of the case, took the position
that the appropriate mechanism for enforcement of the Constitutional provision
at issue was the ballot box, curiously expecting the masses to display an
equal knowledge of and greater respect for the law than those explicitly charged
with and remunerated for upholding it3. One might well wonder at the point
of a written constitution under so casual a populist doctrine, as the electorate
hasn’t the slightest necessary recourse to any such instrument in exercising
whatever collective chaotic wisdom it otherwise by the combined weight of
its votes sees fit to dispense, and in any event however alluring the theory,
practice has now over the course of experiment spoken otherwise, the miracle
of electoral pressure having on this point failed an additional thirty two
years since, and having now in total failed a greater span than that between
Plessey and Brown4. The concrete ramifications of this
failed lassies-faire doctrine of Constitutional integrity by now include a
President who is through the thinnest of veils openly contemptuous of the
law, a Congress collectively acquiescent in this, and the incipient marginalization
of the judiciary under the gathering pressure of de facto martial law.
Abstract questions of authority aside, it seems unlikely the federal judiciary
has the power to directly compel compliance with the Constitutional mandate
at issue, particularly as it materially touches the totem and taproot of national
secrecy. If this highest of laws is in the simplest of circumstances for the
fairest of motives to be obeyed, it seems the only viable legal avenue by
which this might occur is by means of the courts recognizing a citizen’s
right to refuse payment as remedy to its violation, of necessity alloying
the pure authority of the courts with the base metal of individual financial
self interest. The courts may engage in such jurisdictional theorizing as
they like, but a judge’s first allegiance is to the law, and if the
Constitutional provision at issue is to be obeyed then we ought maintain no
illusion but that plaintiff’s remedy, however fraught, appears the only
realistic mechanism by which this will happen. The choice is therefore simple,
for the judiciary alone to make- does the law rule, or does it fall. Plaintiff
thus holds the question of standing in this matter ripe for resubmission.
Wherefore, Plaintiff prays the Court deny defendant’s motion for summary
judgment.
Affidavit
In lieu of separate affidavit, plaintiff by virtue of the pro se nature of the case submits the foregoing motion under penalty of perjury, attesting to plaintiff’s belief in the truth thereof in its entirety. Attested this 10th day of April, 2006.
______________________________________
Gregory T. Christian/Plaintiff
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that service of the foregoing PLAINTIFF’S OBJECTION TO MOTION FOR SUMMARY JUDGMENT has this 10th day of April, 2006 been made via hand delivery upon Defendant's counsel of record:
George J. Conits
Assistant US Attorney for the District of South Carolina
105 N. Spring St., Suite 200
Greenville, SC 29601
______________________________________
Gregory T. Christian/Plaintiff