Second Circuit Appeal: The Brief

LOCAL RULE 28(2) STATEMENT

This appeal arises from an order and decision dated March 3, 2005, by the Honorable Judge James S. Halpern of the United States Tax Court, which

  1. granted a motion by respondent Commissioner of Internal Revenue for summary judgment pursuant to Rule 121 of the Rules of the United States Tax Court dismissing petitioner Daniel Taylor Jenkins's amended petition, and
  2. imposed upon him a penalty of $5,000 under section 6673 of the Internal Revenue Code, 26 USC § 6673.

The court below subsequently denied without opinion petitioner's motion to vacate or revise the decision by order dated June 1, 2005.  The order and decision has not been reported.

JURISDICTIONAL STATEMENT

The court below had jurisdiction of the case pursuant to 26 USC § 6330(d), as petitioner had timely requested review of an adverse determination of the Internal Revenue Service Office of Appeals regarding the escrowed portion of his taxes for the calendar year 2001.   Judgment granting respondent summary judgment and imposing a penalty on petitioner was entered on March 3, 2005; and an order without opinion denying petitioner's motion to vacate or revise decision was entered on June 1, 2005.  Petitioner timely filed a notice of appeal on August 24, 2005.  This Court has jurisdiction over the appeal pursuant to 26 USC§ 7482(a) because Daniel Jenkins resides in New York.

ISSUES PRESENTED FOR REVIEW

  1. Whether the United States Tax Court erred in granting summary judgment and dismissing Daniel Jenkins's constitutional claim because his right of religious conscience not to be subjected to coerced military service or supply of armament is protected from invasion and infringement by the executive and legislative branches of the federal government through the First and Ninth Amendments to the United States Constitution.
  2. Whether the United States Tax Court erred in granting summary judgment and dismissing Daniel Jenkins's claim in that the court below failed to determine whether accommodating his request would unduly burden the Internal Revenue Service under the Religious Freedom Restoration Act of 1993.
  3. Whether the United States Tax Court erred in determining that Daniel Jenkins's contentions were frivolous and imposing a penalty of $5,000 under section 6673 of the Internal Revenue Code.

STATEMENT OF THE CASE

A. Nature of the Claim

This case involves a request that the Internal Revenue Service accommodate petitioner-appellant Daniel Taylor Jenkins's conscientious objection to war by allocating his federal income taxes to non-military purposes.  As directed by the recent decisions of both the Supreme Court in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, __ US __, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) and this Court in Hankins v. Lyght, 438 F.3d 163, 171 (2nd Circuit 2006), his claim must be considered under the Religious Freedom Restoration Act of 1993, 42 USC § 2000bb, et seq., as well as under the First and Ninth Amendments to the United States Constitution.

Daniel Jenkins sought to sustain his position in the United States Tax Court through a constitutional argument that he reasonably believed had not previously been considered by the Tax Court or the Federal Courts.  Noting that there are individual liberties retained by the people in addition to the rights specified in the United States Constitution, the Bill of Rights and other amendments, he argued that through the Ninth Amendment to the United States Constitution the right of conscience could be located in state constitutions and statutes that existed at the time of the founding of the United States.  At that time, and for many years thereafter, the national ‘military’ consisted of the state militias and the weapons supplied by the militiamen, themselves.  Hence, it would be reasonable and feasible to determine whether rights of conscientious objection are among the unenumerated constitutional liberties by examining the documented historical record.  (A 3-5, 58-61, 76)  He also argued that the regulatory and statutory experience of accommodating the Amish objections to paying social security taxes indicates that the IRS is capable of administering exceptions to tax laws of general applicability and, hence, that accommodating his convictions of conscience would not be unduly burdensome.  (A 50-54, 64-66)

Daniel Jenkins does not ask to be excused from paying any part of his federal income taxes.  In fact, he placed the disputed portion of his taxes in escrow at the time of filing his tax return and advised the Commissioner in writing that the funds were available for use for non-military expenditures.  This accommodation would be consistent with the manner in which state conscientious objector commutation taxes were treated until the demise of the state-based military and by the federal government when it raised armed forces during the Civil War.

The Tax Court failed to address any of Daniel Jenkins's contentions, but simply rejected them as being “representative of a class of arguments that have been universally rejected...”  (A 46)  It granted the Commissioner summary judgment and assessed a $5,000 penalty against Jenkins on his unpaid taxes of $2,276.

Daniel Jenkins raises a reasoned, if novel, argument that involves the interplay of the First and Ninth Amendments in light of the historical record and of the application of the Religious Freedom Restoration Act in light of evidence that the IRS is readily able to handle exceptions to uniform application of the federal tax code.  It deserves careful consideration.

B. The Proceedings Below

On January 28, 2005, the Commissioner moved the United States Tax Court for summary judgment pursuant to USTC Rule 121 and for the imposition of a penalty under 26 USC § 6673.  (A 9-14 and 15-41)  Judge Halpern issued an Order and Decision granting the motion in all respects on March 3, 2005.  (A 43-48)  On March 30, 2005, Jenkins filed a motion to vacate or revise this decision (A 49-78), which was denied without opinion on June 1, 2005.  (A 80)

STATEMENT OF FACTS

Daniel Jenkins filed an accurate and timely 2001 income tax return on April 14, 2002.  He paid the self-employed social security portion of his federal tax obligation and explained in a letter addressed to the Commissioner that the remainder of the taxes owed would be held in escrow pending the opportunity to direct tax dollars entirely to non-military government expenditures.  (A 33-34)

Daniel Jenkins maintained written correspondence with IRS personnel regarding his request that the escrowed tax funds be directed to non-military purposes.   He contacted the Taxpayer Advocate Service and was advised that issues dealing solely with the constitutionality of the tax system are best handled in a court of law.  (A 37)  Accordingly, when he received an IRS final notice of intent to levy (A 22-23), he timely requested an IRS Appeals Office hearing. (A 24-25)

A telephone conference hearing was conducted by Appeals Settlement Officer Bruce Conte on October 8, 2003.  (A 30 and 31)  During the conference call, Jenkins raised constitutional questions and was informed that such issues could not be decided in this hearing, but that he would have a 30 day opportunity to petition the US Tax Court upon receipt of an appeals determination letter.  (A 31)

On November 25, 2003, Daniel Jenkins timely petitioned the United States Tax Court.  (See Docket Item no. 1 in Record on Appeal.)  He filed an amended petition on July 1, 2004 (A 3-5), the Commissioner submitted an Answer denying the material allegations of the amended petition (A 6-7), and trial was scheduled for March 14, 2005.  (A 8)  Prior to the Commissioner moving for summary judgment, Jenkins sought document discovery, but the Commissioner challenged his requests and did not produce any materials.  (See A 63-67)

SUMMARY OF ARGUMENT

The Tax Court erred in summarily dismissing Daniel Jenkins's constitutional arguments for accommodation of his conscientious objection to military taxation.  While the full scope of the liberties protected by the Ninth Amendment is indeterminate, at a minimum it acts as a ‘rule of construction’ for elucidating individual rights expressed in other provisions of the United States Constitution, the Bill of Rights and other amendments.  United States v. Bifield, 702 F.2d 342 (2nd Circuit 1983).

In applying this ‘rule’, it is appropriate to consider the extensive history of state guarantees of a right of conscience against compelled military participation at the time of the adoption of the Constitution and Bill of Rights, and of the state practice of allocating commutation tax revenues to non-military uses.  The preservation of that right and practice thereafter, and the adoption of a comparable exemption and allocation of commutation revenues to humanitarian purposes by the federal government further support the conclusion that this is a cognizable individual liberty.  The Tax Court should have considered this evidence before reaching its judgment.

The Tax Court also erred in failing to consider Daniel Jenkins's claim under the Religious Freedom Restoration Act of 1993 ( ‘RFRA’), 42 USC § 2000bb, et seq.   Hankins v. Lyght, 438 F.3d 163, 171 (2nd Circuit 2006).  RFRA does not permit the government to rest on presumptive arguments that exceptions from uniform application of general statutes to accommodate rights of conscience would be unduly burdensome.  Rather, ‘RFRA’, and the strict scrutiny test it adopted, contemplate an inquiry more focused than the Government's categorical approach.  RFRA requires the Government to demonstrate that the compelling interest test is satisfied through the application of the challenged law ‘to the person’ – the particular claimant whose sincere exercise of religion is being substantially burdened.  Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, __ US __, 126 S.Ct. 1211, 1220, 163 L.Ed.2d 1017 (2006).  The regulatory and statutory exception from social security taxes carved out for the Amish forcefully indicates that accommodating Daniel Jenkins's conscientious objection would not be unduly burdensome for the IRS.  Accordingly, the Commissioner was not entitled to summary judgment without meeting its evidentiary burdens under RFRA.

Finally, the Tax Court erred in assessing a $5,000 penalty against Daniel Jenkins under 26 USC § 6673 because his position is neither frivolous nor being pursued in bad faith.  Particularly bearing in mind that Daniel Jenkins was proceeding pro se in the Tax Court, the assessment of a substantial penalty was an abuse of discretion.

ARGUMENT

I. STANDARD OF APPELLATE REVIEW

A. Review of Grant of Summary Judgment

This Court reviews a grant of summary judgment de novo and, in doing so, construes the evidence, draws all inferences and resolves all ambiguities in favor of the non-moving party, here petitioner-appellant Daniel Jenkins.  Beechwood Restorative Care Center v. Leeds, 436 F.3d 147, 151 (2nd Circuit 2006); Green Mountain Railroad Corp. v. State of Vermont, 404 F.3d 638, 639 (2nd Circuit 2005); Anthony v. City of New York, 339 F.3d 129, 134 (2nd Circuit 2003).  Summary judgment is proper only if ‘there is no genuine issue as to any material fact’, USTC Rule 121(b); see Federal Rules of Civil Procedure 56(c), and the evidence on each material element, even if unrebutted, must be sufficient to entitle the movant to relief in its favor as a matter of law.  Vermont Teddy Bear Company v. 1-800 Beargram Company, 373 F.3d 241, 244 (2nd Circuit 2004).

B. Standards Applicable to a Pro Se Litigant

In making these determinations, the Court must appreciate that Daniel Jenkins was acting pro se in the proceedings below.  This Court has instructed that “special solicitude should be afforded pro se litigants ... when confronted with motions for summary judgment.”  Graham v. Lewinski, 848 F.2d 342, 344 (2nd Circuit 1988).  Accordingly, the Court should “read his supporting papers liberally, and ... interpret them to raise the strongest arguments that they suggest.”  Burgos v. Hopkins, 14 F.3d 787, 790 (2nd Circuit 1994); citing Mikinberg v. Baltic S.S. Company, 988 F.2d 327, 330 (2nd Circuit 1993); see also Green v. United States, 260 F.3d 78, 83 (2nd Circuit 2001).

As well, a summary judgment motion searches the entire record to determine whether the claimant has any viable claim that cannot be disposed of on the basis of the undisputed material facts.  USTC Rule 121(b); see Federal Rules of Civil Procedure 56(c).  “[T]he failure in a complaint to cite a statute, or to cite the correct one, in no way affects the merits of a claim, because factual allegations alone are what matters.”  Consolidated Edison Company of New York v. UGI Utilities, Inc., 423 F.3d 90, 104 (2nd Circuit 2005) (quotation marks omitted); quoting Albert v. Carovano, 851 F.2d 561, 571 n. 3 (2nd Circuit 1988); see Gins v. Mauser Plumbing Supply Company, 148 F.2d 974, 976 (2nd Circuit 1945) (Clark, J.) (“particular legal theories of counsel yield to the court's duty to grant the relief to which the prevailing party is entitled, whether demanded or not.”); Newman v. Silver, 713 F.2d 14, 15 n. 1 (2nd Circuit 1983).  And the Supreme Court has particularly instructed that the ‘inartful pleadings’ of pro se litigants should be liberally construed.  Boag v. MacDougall, 454 US 364, 365 (1982) (per curiam); Hughes v. Rowe, 449 US 5, 9 (1980); Haines v. Kerner, 404 US 519, 520 (1972).

C. RFRA Standards

Daniel Jenkins's papers request relief - accommodation of his religious conscience - that require consideration under the Religious Freedom Restoration Act of 1993 (‘RFRA’), 42 USC § 2000bb, et seq. See discussion at 22-26, below.  Accordingly, the Court will need to apply the special evidentiary rules applicable under that statute in determining whether the grant of summary judgment was correct.

Under RFRA, the Federal Government is permitted to substantially burden a person's exercise of religion ‘only if it demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’  42 USC § 2000bb-1(b).  The Act defines ‘demonstrates’ to require the government to ‘meet[] the burdens of going forward with the evidence and of persuasion.’  42 USC § 2000bb-2(3).  See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, __ US __, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006).

D. Review of Imposition of a Penalty

Finally, if the Court sustains Tax Court's grant of summary judgment, it also must determine whether the imposition of a penalty under section 6673 of the Internal Revenue Code, 26 USC § 6673, was an abuse of discretion, Burke v. Commissioner of Internal Revenue, 929 F.2d 110, 116 (2nd Circuit 1991), and whether the penalty imposed in this case may tend to chill the exercise of constitutional rights to petition the courts to seek new interpretations or extensions of the law.  May v. Commissioner of Internal Revenue, 752 F.2d 1301, 1306 (1985).

II. THE TAX COURT SHOULD NOT HAVE DISMISSED DANIEL JENKINS' CLAIM BECAUSE HE RAISES A VIABLE THEORY UNDER THE FIRST AND NINTH AMENDMENTS FOR THE RECOGNITION AND ACCOMMODATION OF A RIGHT OF CONSCIENTIOUS OBJECTION TO MILITARY TAXATION

In the Tax Court, Daniel Jenkins sought to present an argument that utilizes the Ninth Amendment[1] to illuminate the rights of conscience guaranteed by the Religion Clauses of the First Amendment.[2]  The Tax Court refused to consider this position, but summarily rejected it as ‘representative of a class of arguments that have been universally rejected by this and other courts.’  (A 46), citing United States v. Lee, 455 US 252 (1982); and Tingle v. Commissioner, 73 T.C. 816 (1980).

A. Ninth Amendment Jurisprudence

Ninth Amendment jurisprudence is murky, at best.  The Supreme Court has acknowledged that the Amendment has meaning and vitality[3] and that persons possess liberty rights beyond those specifically mentioned in the United States Constitution and amendments,[4] while also seeking to locate unenumerated rights in the text of other Amendments.[5]  This Court has never undertaken any detailed analysis of the Amendment's meaning nor the types of liberties it protects.[6]

The only officially published decision of this Court that considered the Ninth Amendment at all arose in the context of locating the constitutional right of an accused to testify in his/her own behalf.  United States v. Bifield, 702 F.2d 342 (2nd Circuit 1983).  The Court concluded that the Ninth Amendment's ‘rule of construction’ bolstered the unexpressed right of an accused to testify implicit in the Fifth and Sixth Amendments:

That this unmentioned right is a constitutional one is further fortified by the rule of construction contained in the Ninth Amendment, which provides that ‘the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’ The full scope of the specific guarantees is not limited by the text, but embraces their purpose to provide broad freedom from all ‘arbitrary impositions and purposeless restraints.’ See Poe v. Ullman, 367 US 497, 543, 6 L. Ed. 2d 989, 81 S. Ct. 1752 (1961) (Harlan, J., dissenting); L. Tribe, American Constitutional Law §  11-3, at 569-70 (1978).

Id. at 349.[7]

At a minimum, then, the Tax Court had an obligation to consider whether Daniel Jenkins's asserted right of conscience not to be compelled to participate in war making could be discerned in the First Amendment's prohibition of abridging the free exercise of one's faith as elucidated by the Ninth Amendment's ‘rule of construction’.  Moreover, Daniel Jenkins offered to prove that this right is grounded in a liberty explicitly recognized as an element of religious freedom at the time of the adoption of the United States Constitution and the Bill of Rights.  Hence, he offered to tender evidence that the right of conscience is, in fact, a recognized liberty that the Government could not ‘deny or disparage’ by virtue of the Ninth Amendment's rule of construction.

The Ninth Amendment was intended to respond to concerns that enumeration of specific rights in the first eight amendments could be interpreted to negate the existence and continuing vitality of other - unstated - liberties.  See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 US 555, 579 (1980) (plurality opinion of Burger, C.J.).  It would be ironic, indeed, if the lack of a standard for identifying and delimiting these retained rights becomes the justification to deny their existence.  One method for resolving this dilemma is to look to liberties clearly existent at the time of the adoption of the Constitution and the Bill of Rights, as reflected in, for example, state constitutions and legislation.[8]  That is what this Court did to locate the constitutional right of an accused to testify in his/her behalf in Bifield.  702 F.2d at 347-349.

B. State and Federal Recognition of Right of Conscientious Objection to Compelled Military Participation

New York has long recognized an individual right of religious conscience not to be subject to coerced military service or supply of armament.  The New York State Constitution of 1777, which predates and is independent of the United States Constitution and the Bill of Rights, expressly protects persons with ‘scruples of conscience’ from forced military service and requisition for armament.  And this right of conscientious objection was maintained in New York State for many decades before there was a permanent national army; before young men were conscripted for military service by the federal government; and before a direct federal tax on income was used to fund military expenditures.  Even after the  compulsory state militia was discontinued in the late nineteenth century, the guarantee of conscientious exemption to the bearing of arms was continued in New York's civil rights law.

The first New York State Constitution was ratified on April 20, 1777.  It contained the following liberty of conscience guarantee:

That all such of the inhabitants of this state (being of the people called Quakers) as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature, and do pay to the state such sums of money, in lieu of their personal service, as the same may, in the judgment of the legislature, be worth.[9]

Subsequent New York State statutes, both before and after the formation of the federal union, maintained this Constitutional protection.  The 1786 ‘Act to Regulate the Militia’,[10] and the 1793 ‘Act to Organize the Militia’[11] each provided:

That all persons being of the people called Quakers who would otherwise be subject to military duty by virtue of this act, and who shall refuse personal military service, shall be exempted therefrom on paying annually the sum of forty shillings [twenty four shillings in the 1793 Act] each for such exemption into the treasury of this State, to be applied toward the support of government.

The New York Legislature adopted comparable acts in 1808[12] and 1809,[13] but now directed that the commutation or exemption tax be used for the ‘support of common schools’.  In 1814, the legislature directed “That all commutation money hereafter to be received from people called Quakers, under or by virtue of the act to organize the militia of this state, instead of being paid to the treasurer of this state, for the benefit of common schools, shall be paid to the several county treasurers, for the use of the poor in the said counties.”[14]  In 1816, the legislature broadened the exemption to include the Shakers.[15]  Further militia acts with exemptions on grounds of conscience were adopted in 1818[16] and 1820.[17]

When the New York State Constitution was rewritten by a convention in 1821, the exemption was expanded to include ‘all such inhabitants of this state, of any religious denomination whatever, as from scruples of conscience may be averse to bearing arms...’[18]  Further militia acts, with exemptions for persons who by reason of ‘scruples of conscience may be averse to bearing arms’, were adopted in 1823,[19] 1824,[20] 1846[21] and 1847.[22]  Exemption was preserved when the New York State Constitution was again rewritten by a convention in 1846.[23]  And the religious exemption from ‘bearing arms’ continues today in Article 2, Section 6 of the New York State Civil Rights Law.

In summary, at the times when the colonial and, subsequently, the United States military consisted of state militias and soldiers were required to supply their own weapons, the right of religious exemption from the ‘bearing of arms’ in the state militia was guaranteed by New York constitutional and statutory provisions.  It has continued to be acknowledged, accommodated, and protected by the People of the State of New York ever since.[24]

The right of conscience not to be compelled to participate in war making and the supply of armaments also was reflected in the action of the early Congress, whose acts offer special insight into the intent of the founders.  On May 8, 1792, Congress passed “An Act more effectually to provide for the National Defense by establishing a Uniform Militia throughout the United States.”[25]  This is the first national legislation enacted concerning military service.  Militia duty required both personal participation and the supply of weapons and ammunition.  The statute required ‘each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years, (except as is hereinafter excepted), shall severally and respectively be enrolled in the militia...’  It required each enrollee to ‘provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder horn, twenty balls suited to the bore of his rifle, and a quarter pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service...’  This first Congressional act regarding military service provided an exemption for ‘all persons who now are or may hereafter be exempted by the laws of the respective states...’

The first federal universal military service draft was instituted during the Civil War.  In March 1863 and February 1864, Congress adopted acts exempting from service ‘members of religious denominations, who shall by oath or affirmation declare that they are conscientiously opposed to the bearing of arms, and who are prohibited from doing so by the rules and articles of faith and practice of said religious denominations...’  And of particular pertinence to the issues presented here, Congress specifically accommodated conscientious objections to the payment of ‘war taxes’ by providing that the commutation fee to be paid for exemption from military service was to be applied solely to humanitarian purposes.[26]  See United States v. Philadelphia Yearly Meeting of the Religious Society of Friends, 322 F.Supp. 2d 603, 605 (E.D. Pa. 2004).

Accordingly, there is a substantial basis to conclude that a right of individual conscience not to be compelled to support military service and supply was ‘retained by the people’ from before the founding of the federal government and, hence, properly may be found to form a part of the free exercise of religion protected by the First Amendment, as elucidated by the Ninth Amendment.

III. THE TAX COURT ERRED IN FAILING TO DETERMINE WHETHER ACCOMMODATING DANIEL JENKINS WOULD BE UNDULY BURDENSOME UNDER THE RELIGIOUS FREEDOM RESTORATION ACT OF 1993

In accordance with this Court's decision in Hankins v. Lyght, 438 F.3d 163, 171 (2nd Circuit 2006), Daniel Jenkins's contentions first must be addressed under the Religious Freedom Restoration Act of 1993 (‘RFRA’), 42 USC § 2000bb, et seq.  Here, as in Hankins, Daniel Jenkins asserted a substantial burden on religious exercise in the proceedings below.  Accordingly, he cannot be deemed to have waived or forfeited a RFRA defense.  Id.  Indeed, he even directed the Tax Court's attention to the exemption of the Amish from the Social Security taxes as evidence that tax laws of general applicability are not currently uniformly applied and that accommodating his convictions of conscience would not be unduly burdensome.  (A 50-54, 64-66)

In Browne v. United States, 176 F.3d 25 (2nd Circuit 1999), cert. denied, 528 US 1116 (2000), this Court held that reliance on RFRA fails because of a presumed ‘compelling governmental interest in uniform, mandatory participation in the federal income tax system.’  Id. at 26.  The Third Circuit reached a similar conclusion in Adams v. Commissioner of Internal Revenue, 170 F.3d 173 (3rd Circuit 1999); see, also, United States v. Philadelphia Yearly Meeting of the Religious Society of Friends, 322 F.Supp. 2d 603 (E.D. Pa. 2004).

Those decisions might appear to foreclose an accommodation of Daniel Jenkins's conscience under RFRA but for the decision of the Supreme Court this past February in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, __ US __, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006).  In that case, the government argued that “it has a compelling interest in the uniform application of the Controlled Substances Act”, id., 126 S.Ct. at 1216, which precluded any inquiry into whether accommodating the requested religious exception for ceremonial use of a Schedule I hallucinogen “would seriously compromise its ability to administer the program.”  Id., 126 S.Ct. at 1223.  The Supreme Court emphatically rejected the government's ‘categorical approach’ and directed that the government must establish on a case-by- case basis that it cannot accommodate a request based on religious conscience:

RFRA, and the strict scrutiny test it adopted, contemplate an inquiry more focused than the Government's categorical approach.  RFRA requires the Government to demonstrate that the compelling interest test is satisfied through the application of the challenged law ‘to the person’ – the particular claimant whose sincere exercise of religion is being substantially burdened. . . .  [W]e must searchingly examine the interests that the State seeks to promote ... and the impediment to those objectives that would flow from recognizing the claimed ... exemption.

Id., 126 S.Ct. at 1220 (quotation marks omitted).[27]

The Court held that the government bears the evidentiary burden to prove that accommodation would be unworkable.  Id., 126 S.Ct. at 1216-1217.  It rejected any suggestion that the federal courts should not engage in crafting exceptions to the acts of Congress.  Id., 126 S.Ct. at 1222 (‘RFRA, however, plainly contemplates that courts would recognize exceptions – that is how the law works.  See 42 USC § 2000bb-1(c).’).[28]  And it tellingly noted that the regulatory and statutory exemption for the religious use of peyote by Indian Tribes undermined the government's contended need for uniform application of the Controlled Substances Act:

The well-established peyote exception also fatally undermines the Government's broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA.

*   *   *

Here the Government's argument for uniformity ... rests not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law.  The Government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions.  But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to ‘rules of general applicability.’  42 USC § 2000bb-1(a).  Congress determined that the legislated test “is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”  § 2000bb(a) (5).

Id., 126 S.Ct. at 1222-1223.

Daniel Jenkins attempted to focus the Tax Court on the exemption of the Amish from the Social Security taxes as evidence that accommodating his conscience would not be unduly burdensome.  Gonzales mandates that the fact of this exception to the general application of the tax laws be given serious attention under RFRA.  More generally, Gonzales demands that, before Daniel Jenkins's request for accommodation can be rejected, the Commissioner must come forward with specific evidence that “demonstrate[s] that the compelling interest test is satisfied through application of the challenged law ‘to the person’ - the particular claimant whose sincere exercise of religion is being substantially burdened.”  Id., 126 S.Ct. at 1220.  The Commissioner plainly has not even attempted to do so, and the Tax Court made no such finding.  Accordingly, the Tax Court must be held to have erred in granting summary judgment.

IV. THE TAX COURT SHOULD NOT HAVE ASSESSED A PENALTY BECAUSE DANIEL JENKINS's CLAIM IS NOT FRIVOLOUS

Pursuant to 26 USC § 6673(a) (1), the Tax Court assessed a penalty against Daniel Jenkins of $5,000 on the escrowed $2,276 of his total tax liability of $4,118.58.  (A 47-48)  The Court concluded that Daniel Jenkins's position was frivolous (i) because ‘it is contrary to established law and unsupported by a reasoned, colorable argument for change in the law’, (ii) because it believed that Jenkins had presented the same argument in  the a proceeding involving his 1985 tax return, and (iii) because the settlement officer who conducted the hearing had warned Jenkins that he might face sanctions if he proceeded to Tax Court.

Of course, if this Court reverses the decision below on the merits, it must also reverse the imposition of a penalty as the Tax Court's decision was based on its conclusion that Daniel Jenkins's legal position was so without merit that it did not  even warrant considered attention (rather than any dilatory or uncooperative conduct).

Even if the Court does not reverse the decision below as to Daniel Jenkins's request for an accommodation, it should reverse the assessment of a penalty.

First, Daniel Jenkins's argument, contrary to the Tax Court's conclusion (A 46), clearly is not simply a rehash of ‘a class of arguments that have been universally rejected...’  Daniel Jenkins's analysis offers a reasoned method for using the Ninth Amendment's ‘rule of construction’ to elaborate on the meaning and scope of the free exercise of religion clause of the First Amendment, which is supported by reputable scholarship and which was not invoked in any of the prior cases.  The detailed chronology of New York State constitutional and statutory provisions, as well as Congressional actions, supports his request for accommodation under the proffered analytical methodology.  And the requirements of RFRA demand that his contention be given at least some measured consideration before being rejected as controlled by prior cases.  See, e.g., United States v. Philadelphia Yearly Meeting of the Religious Society of Friends, 322 F.Supp. 2d 603, 613 (E.D. Pa. 2004).

Second, Daniel Jenkins's theory and the supporting historical information was neither raised by him nor considered by the Tax Court in the case involving his 1985 taxes.  (See A 39-41)  (And even if there were some overlap between the issues involved in the 1985 taxes proceeding and the current case, it is hard to imagine that raising a constitutional issue once every 20 years constitutes willfulness and lack of good faith that warrants the imposition of a $5,000 penalty.)

Third, Daniel Jenkins was proceeding pro se in the Tax Court, and this ‘special circumstance’ should be taken into consideration in assessing his claim.  Cf. Maduakolam v. Columbia University, 866 F.3d 53, 56 (2nd Circuit 1989) (“While it is true that Rule 11 applies both to represented and pro se litigants, the court may consider the special circumstances of litigants who are untutored in the law.”).

Finally, a $5,000 penalty on an unpaid tax liability of $2,276 (and a total tax of $4,118.58) should be considered grossly disproportionate.  Compare, e.g., Banat v. Commissioner of Internal Revenue, 80 Federal Appx. 705, 203 US App. LEXIS 23403 (2nd Circuit 2003) (Not-for-Publication) ($2,000 sanction on a $41,372.42 tax liability).

This Court has “an obligation to ensure that the Tax Court's discretion does not become a talismanic formula that effectively precludes appellate review in apparent tax protest cases.”  May v. Commissioner of Internal Revenue, 752 F.2d 1301, 1306 (8th Circuit 1985).  Daniel Jenkins has at all times acted in good faith in seeking to present an argument of first impression.  There is no suggestion that, at any time in the proceedings below, he was less than fully diligent, courteous and well-intentioned.  The Tax Court's imposition of a significant penalty appears to reflect its exasperation with ‘war tax resisters’.  But “[t]he doors of our courts must always remain open to persons seeking in good faith to invoke the protection of the law, ... to resist its heavy-handed application, or to urge novel and path-breaking interpretations or extensions of the law.”  Id.  The assessment of a penalty under 26 USC § 6673(a) (1) by the court below was an abuse of discretion in these circumstances.

CONCLUSION

For the foregoing reasons, petitioner-appellant Daniel Taylor Jenkins respectfully submits that the rulings of the Tax Court should be reversed and petitioner's appeal should be granted.

Dated:

New York, New York May 31, 2006

Respectfully submitted,

  • LAW OFFICE OF FREDERICK R. DETTMER
  • By: Frederick R. Dettmer (FD-2426)
  • 340 Corlies Avenue Pelham, New York  10803 914-738-8782
    • Attorney for Petitioner-Appellant
    • DANIEL TAYLOR JENKINS
  • [1] The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
  • [2] The Religion Clauses of the First Amendment provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .”
  • [3] E.g., Griswold v. Connecticut, 381 US 479, 488, 491 (1965) (Goldberg, J., concurring) (“The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from government infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. ... To hold that a right so basic and fundamental and so deeply rooted in our society …. may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever.”)
  • [4] E.g., Planned Parenthood v. Casey, 505 US 833, 848 (1992) (“Neither the Bill of Rights nor the specific practices of states at the time of the adoption of the 14th Amendment marks the outer limits of the substantive sphere of liberty which the 14th Amendment protects.  See US Constitution, Amendment 9.”); Poe v. Ullman, 367 US 497, 541, 543 (1961) (Harlan, J., dissenting)
  • [5] E.g., Roe v. Wade, 410 US 113, 153 (1973) (“This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”); Whelan v. Roe, 429 US 589, 600 (1977).
  • [6] A Lexis/Nexis search disclosed 24 decisions in which this Court mentions the Ninth Amendment, of which 5 are ‘not-for-publication’ opinions.  Twenty-two of these cases contain only a statement that a party asserts a claim under the Ninth Amendment, without any discussion.  The two remaining decisions (United States v. Bifield, 702 F.2d 342 (1983); and Zorn v. Premiere Homes, Inc., 109 Federal Appx. 475, 2004 LEXIS 20329) (2004) (Not-for-Publication)) are discussed in the text above and footnote 7, below.
  • [7] In Zorn v. Premiere Homes, Inc., supra. this Court cited Bifield for the proposition that the plaintiff's breach of construction subcontract grievance ‘failed to state a Ninth Amendment claim because that constitutional provision is a rule of construction that does not give rise to individual rights.’
  • [8] See, e.g., Randy E. Barnett, Restoring the Lost Constitution (Princeton University Press 2004);  Randy E. Barnett, The Ninth Amendment: It Means What It Says, Boston University School of Law Working Paper 05-14, August 24, 2005, www.bu.edu/law/faculty/papers/BarnettR082405abstract.html {Note: the currently correct link is www.bu.edu/law/faculty/scholarship/workingpapers/new-Barnett-05.html See also: Randy E. Barnett, “The Ninth Amendment: It Means What It Says”, Texas Law Review, Volume 85, Number 1 (November 2006) - webweaver 11/18/2008}; Russell L. Caplan, The History and Meaning of the Ninth Amendment, 69 Va. L. Rev. 223, 259 (1983).
  • [9] New York State Constitution of 1777, Article XL; in Charles Z. Lincoln, The Constitutional History of New York ( Lawyers Co-Op. Publ. Company 1906), Volume I, at 186; available at: www.yale.edu/lawweb/avalon/states/ny01.htm
  • [10] Act of April 4, 1786, New York Legislature, 9th Session, Ch. 25; in Session Laws of the State of New York (Weed, Parsons and Company 1886), Volume II, at 225.
  • [11] Act of March 9, 1793, New York Legislature, 16th Session, Ch. 45; in Session Laws of the State of New York (Weed, Parsons and Company 1887), Volume III, at 447.  A similar statute was adopted in 1801.  Act of April 7, 1801, New York Legislature, 24th Session, Ch. 166; in Session Laws of the State of New York (Weed, Parsons and Company 1887), Volume V, at 465-466.
  • [12] Act of April 8, 1808, New York Legislature, 31st Session, Ch. 154, Article XIV; in Laws of the State of New York (Websters and Skinner 1809), Volume V, at 333.
  • [13] Act of March 29, 1809, New York Legislature, 32nd Session, Ch. 165; in Public Laws of the State of New York (S. Southwick 1809), at 197-199.
  • [14] Act of April 15, 1814, New York Legislature, 37th Session, Ch. 200, Article XXIII; in Laws of the State of New York (H.C. Southwick 1814), at 253.
  • [15] Act of March 29, 1816, New York Legislature, 39th Session, Ch. 50; in Laws of the State of New York (J. Buel 1816) at 45.
  • [16] Act of April 21, 1818, New York Legislature, 41st Session, Ch. 222, Article XLII and XLIII; in Laws of the State of New York (J. Buel 1818), at 227-228.
  • [17] Act of April 14, 1820, New York Legislature, 43rd Session, Ch. 247; in Laws of the State of New York (J. Buel 1820), at 252.
  • [18] New York State Constitution of 1821, Article VII, Section 5; in Charles Z. Lincoln, The Constitutional History of New York ( Lawyers Co-Op. Publ. Company 1906), Volume I, at 213.
  • [19] Act of April 23, 1823, New York Legislature, 46th Session, Ch. 244, Article IX; in  Laws of the State of New York (Leake and Croswell 1823), at 333-334.
  • [20] Act of April 12, 1824, New York Legislature, 47th Session, Ch. 247, § I; in Laws of the State of New York (Leake and Croswell 1824), at 307-308.
  • [21] Act of May 13, 1846, New York Legislature, 69th Session, Ch. 270, § 7; in Laws of the State of New York (Gould, Banks and Gould 1846), at 346-347.
  • [22]   Act of September 8, 1847, New York Legislature, 70th Session, Ch. 290, § 6; in Laws of the State of New York (Gould, Banks and Gould 1847), Volume II, at 355.
  • [23] New York State Constitution of 1846, Article XI, § 1; in Charles Z. Lincoln, The Constitutional History of New York (Lawyers Co-Op. Publ. Company 1906), Volume I, at 213.
  • [24] Other states have maintained liberty of conscience guarantees and religious exemptions from the ‘bearing of arms’ in their constitutions since before the formation of the United States.  See, for example, Constitution of the Commonwealth of Pennsylvania of 1776, Article 2 and 8, www.yale.edu/lawweb/avalon/states/pa08.htm; Constitution of the State of Vermont of 1777, Article 3 and 9, www.yale.edu/lawweb/avalon/states/vt01.htm; Constitution of the State of New Hampshire of 1784, Article 4, 5 and 13, nh.gov/constitution/billofrights.html.
  • [25] Act of May 8, 1792, § 1, 2nd Congress, 1st Session, Ch. 33; in Richard Peters, ed., The Public Statutes at Large of the United States of America from the Organization of the Government in 1789 to March 3, 1845 (Little and Brown 1845), Volume I, at 271-272.
  • [26] The Act provided that conscientious objectors who chose not to perform alternative civilian service ‘shall pay the sum of three hundred dollars ... to be applied to the benefit of the sick and wounded soldiers.’  Act of February 24, 1864, ch. 13, § 17, 13 Stat. 6, 9.
  • [27] RFRA's demand that analysis focus on impact of the challenged law ‘to the person’ distinguishes such older cases as United States v. Lee,  455 US 252 (1982), where the Court focused solely on ‘denominations’.  Id. At 260 (“The tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.”).
  • [28] Cases like Browne v. United States, supra., and Adams v. Commissioner of Internal Revenue, supra. erred in, among other things, failing to appreciate RFRA's directive to the Federal Courts to craft exceptions to laws of general application to accommodate individual religious convictions.  Thus, in Adams, the Third Circuit rejected Adams's reliance on the statutory exemption for the Amish on the mistaken ground that “tax exemptions are a matter of legislative grace...”  170 F.3d at 180.  After the Supreme Court's elucidation of RFRA in Gonzales, this is no longer correct.