Petition
Petition
Petition
IN THE
Supreme Court of the United States
JOSEPH O. SALADINO
Pro se Litigant
9637 W. LITTLEWOOD DR.
BOISE, IDAHO 83709
208-562-1089
QUESTIONS PRESENTED
Petitioner raised several issues of law and precedent
relative to personam and subject matter jurisdiction with
the Ninth Circuit and the Court denied Petitioner’s ap-
peal and the motion for en banc hearing without comment
regarding the jurisdiction issues raised. The issues of law
and precedent presented herein have either not been ad-
dressed by the Court with the particularity presented
herein or there is new evidence this Court should review
which may reverse this Court’s and lower Courts’ prior
rulings. The level of detail in the following questions and
the particular nuances of the questions are required since,
by the Court addressing said questions, there will be
added clarity established which may eliminate misunder-
standings and confusion with respect to future litigation.
The questions for consideration are as follows:
1. Petitioner has been required to speculate with re-
gard to the existence of a United States law which would
“expressly” extend the authority of the Secretary to the
fifty freely associated compact states (“several states”)
and said silence by U.S. Attorney’s and the Courts is a
denial of due process. With respect to said denial of due
process issues, the questions are:
a. Is it a denial of Petitioner’s right to due process for
Petitioner to be required to speculate as to the meaning of
U.S. laws thereby potentially subjecting his family and
himself to prison and other personal damage when the
Courts refuse to reveal the law (or the absence of said
law) which “expressly” extends the authority of the Secre-
tary to the several states with respect to 4 USC § 72.
b. Is it a denial of Petitioner’s right to due process for
over 20 U.S. Attorneys and several of the lower Courts to
remain silent and refuse to responsively address the is-
sues of personam and subject-matter jurisdiction raised
by Petitioner in the Ninth Circuit with regard to 4 USC §
72.
2. Title 4 USC § 72 restrains all offices associated with
the seat of government from exercising their authority
ii
TABLE OF CONTENTS
TABLES OF AUTHORITIES
Cases
Adair v. U.S., 208 U.S. 161, 172 (1908) ................................ 16
Aetna Ins. Co. v. Chicago R.I. & P.R.R., 229 F.2d 584 (10th
Cir.) .................................................................................. 3
Alves v. CIR, 734 F.2d 478, 481 (CA9 1984)............... 16, 21
Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723,
756 (1975)....................................................................... 26
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988).......................................................................... 7, 25
Boyd v. U.S., 116 U.S. 616, 635 .......................................... 4
Brown v. FDA, 153 F.3d 155, 160-167 (CA4 1998), aff’d
529 U.S. 120 (2000) ....................................................... 24
Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746, 757
(1883) .............................................................................. 16
Caha v. U.S., 152 US 211.................................................... 5
Central Bank of Denver, N.A. v. First Interstate Bank of
Denver, N.A., 511 U.S. 164, 173-175 (1994) ................. 26
Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842, 104
S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984) ...................... 24
City of Lauden, Okla. v. Chapman, 257 F.2d 601 (10th
Cir.) .................................................................................. 2
Cohn v. CIR, 73 USTC 443, 446-47 (1979).................. 16, 21
Connally v. General Construction Co., 269 U.S. 385, 391
(1926)................................................................................ 6
Coppage v. Kansas, 236 U.S. 1 (1915).................................. 16
Department of Housing and Urban Renewal v. Rucker,
535 U.S. 125, 130-31 (2002) .................................... 18, 19
Diversified Metal Products v. T-Dow Company Trust,
Internal Revenue Service, and Steve Morgan..........iv, 12
Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-14 (1976)
........................................................................................ 25
F & S Contr. Co. v. Jensen, 337 F.2d 160, 161-162, (10th
Cir.1963) .......................................................................... 2
Federal Trade Commission v. Raladam Co., 283 U.S. 643,
51 S.Ct. 587 (1931) ........................................................ 13
Foley Brothers, Inc. v. Filardo, 336 US 281 (1948)............ 5
x
Statutes
18 USC § 2383 ................................................................... 14
18 USC § 2384 ................................................................... 14
26 USC § 1 ......................................................................... 15
26 USC § 1001 ................................................................... 20
26 USC § 1011 ................................................................... 20
26 USC § 1012 ................................................................... 20
26 USC § 107 ..................................................................... 15
26 USC § 1402(b) .........................................................vii, 26
26 USC § 212 ..................................................................... 20
26 USC § 3121(e) .........................................................vii, 26
26 USC § 3401(c) .........................................................vii, 27
26 USC § 61(a) ............................................................. 14, 15
26 USC § 62 ....................................................................... 15
26 USC § 63 ....................................................................... 15
26 USC § 6700 ........................................................... iii, 1, 2
26 USC § 6701 ..................................................................... 2
26 USC § 7401 ..................................................................... 2
26 USC § 7402 ..................................................................... 2
26 USC § 7408 ..................................................................... 2
26 USC § 7621 ................................................. 3, 8, 9, 10, 13
26 USC § 7701(10) ..............................................................iv
26 USC § 7701(a)(10)........................................................... 9
26 USC § 7801 ..................................................................... 8
26 USC § 7805 ..................................................................... 8
26 USC § 83(a) ...................... v, vi, 1, 5, 6, 14, 16, 18, 20, 21
28 U.S.C. § 1746(1) ............................................................ 30
28 USC § 1254(1) ................................................................. 1
28 USC § 1340 ..................................................................... 2
28 USC § 1345 ..................................................................... 2
xii
Regulations
19 CFR Part 101 ................................................................10
26 CFR § 1.1001-1(a) ...........................................................5
26 CFR § 1.1-1(a)(1)........................................................vi, 1
26 CFR § 1.1-1(b) ............................................................vi, 1
26 CFR § 1.83-3(e), (f)........................................................16
26 CFR § 1.83-3(g) .....................................................1, 5, 17
26 CFR § 301.7621-1 .........................................................10
26 CFR 1.1-1(c) ........................................................vii, 4, 29
26 CFR 1.1402(b)-1(d) .......................................................26
26 CFR 31.0-2(a)(1) ...........................................................27
26 CFR 31.3121(e)-1(b)......................................................27
27 CFR § 70.150(b) .............................................................16
Public Law
P.L. 86-624, § 18(j)...............................................................9
P.L. 86-70, § 22(a)................................................................9
Other Authorities
14th Amendment to the Constitution................................25
16th Amendment to the Constitution.................vi, 5, 24, 28
Article 1, Section 2, Clause 2 of the Constitution of the
U.S. .............................................................................8, 25
Black’s Law Dictionary, 6th Ed. “Expressly.” .....................2
Black's Law Dictionary, 6th Ed., “Arm's length
transaction.”...................................................................16
Black's Law Dictionary, 6th Ed., “Property.” ....................16
Executive Order #10289....................................................10
1
718 (1838); KVOS v. Associated Press, 299 U.S. 269, 57 S.Ct. 197, 200,
31 L.Ed. 183 (1936): “…[w]here the allegations…are challenged by the
defendant in an appropriate manner, the plaintiff must support
them by competent proof.” See also F & S Contr. Co. v. Jensen, 337
F.2d 160, 161-162, (10th Cir.1963) (“[I]t is now settled that when
there is an issue as to the sufficiency of jurisdictional amount,
the burden of providing jurisdiction is on the party asserting it.
City of Lauden, Okla. v. Chapman, 257 F.2d 601 (10th Cir.); McNutt v.
General Motors Acceptance Corp., 289 U.S. 178, 56 S.Ct. 780, 80 L.Ed.
1135. Further more, statutes conferring jurisdiction...are to be strictly
construed and doubts resolved against federal court’s jurisdic-
3
In Summary
The issues in this Petition are as follows:
1. Petitioner’s right to due process has been de-
nied/violated by Respondent and the Appellate Court
have concealed and kept secret the Secretary’s jurisdic-
tion in the several states by their refusing to state what
the law is regarding personam and subject matter juris-
diction respecting 4 USC § 72 and 26 USC § 83(a) (see
Appendix B-7 and B 6 respectively) thereby forcing Peti-
tioner to speculate as to the law by which Congress has
authorized the Secretary to act within the several states.
2. That Petitioner has NOT found any U.S. law by
which Congress has “expressly” extended the authority of
the Secretary to the several states, pursuant to 4 USC §
72, and Respondent and the Appellate court continue an
action against Petitioner without establishing personam
and subject matter jurisdiction on the record.
3. The Hughes v. U.S., 953 F.2d 531, 542-43 (9th Cir.
1991)7 opinion, in error, states that 4 USC § 72 does not
foreclose the IRS from acting outside Washington, DC
when the purpose of 4 USC § 72 has exactly that purpose.
Moreover, 26 USC § 76218, cited by Hughes, does not “ex-
pressly” extend the authority of the office of Secretary to
the several states and there is no evidence that the Presi-
dent, pursuant to IRC § 7621, has ever established inter-
Continued...
tion. Aetna Ins. Co. v. Chicago R.I. & P.R.R., 229 F.2d 584 (10th Cir.);
Hely v. Ratta, 292 U.S. 263, 54 S.Ct. 700, 78 L.Ed. 1248.”
7 See Appendix C.
8 See Appendix B-5
4
9 See U.S. v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 1633 (1995)
5
10 See Appendix M.
11 See Appendix B-11
6
(1972); Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939) (“No one may
be required at peril of life, liberty or property to speculate as
to the meaning of penal statutes. All are entitled to be in-
formed as to what the State commands or forbids”) (citations
omitted); Connally v. General Construction Co., 269 U.S. 385, 391
(1926) (“[A] statute which either forbids or requires the doing of
7
Continued...
an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application,
violates the first essential of due process of law”) (citations omit-
ted).
15 Petitioner’s demand has always been that Respondent and the
Courts prove the Secretary’s authority within the several states and in
U.S. law pursuant to the mandates of 4 USC § 72 and the response
from Respondent or the Courts has either been complete silence or
references to Court rulings which do not show any U.S. law by which
8
Continued...
Congress has “expressly” extended the authority of the Secretary to
the several states.
16 Congress has “expressly” extended the authority of the Secretary
to the Virgin Islands with respect to IRC Chapter 75 and this area is
obviously outside “the District of Columbia” but not remotely associ-
ated with the several states.
9
17 Under this definition, Alaska and Hawaii were removed from ap-
Continued...
dated by 4 USC § 72 thereby forcing Petitioner to speculate that no
said authority for the Secretary in the several states exists in U.S. law.
19 The burden of proof that said districts exist and have been estab-
21There exists other evidence that the IRS is not an Agency of the
United States Government which Petitioner will brief upon request by
the Court and which are summarized as follows:
1. The IRS does not show up in the list of Departments,
Offices, Agencies and Bureaus listed in the Treasury as found
in 31 USC § 301 et. Seq. (See Appendix E-3)
2. Petitioner can show that the law by which the IRS is
appropriated funds to operate shows that it is not a service
within the Department of the Treasury (“Treasury”).
3. Evidence shows that the IRS is not able to spend
Treasury appropriations for “Mission Critical” functions such
as postage.
4. The IRS (along with other agencies “outside” the
Treasury) is required to reimburse the Fiscal Service/
Financial Management Service (FMS) (a service within the
Treasury, see 31 U.S.C.S. § 306(a), Appendix E4), for postage
expended by the FMS on behalf of the IRS.
5. In 31 U.S.C. § 1301 (see Appendix E5) under “2. Ap-
plicability”, an Agency within a department appropriation IS
permitted by law to spend money not appropriated as long as
said expenditures meet the mission of the spending agency
within the Department to which funds have been appropriated.
6. Agencies which are not part of the Treasury are re-
quired to reimburse the Treasury/FMS for expenditures paid
by the FMS on behalf of said “outside” agency. (see 31 U.S.C.S.
§ 306, Appendix C).
7. The IRS and the Department of Agriculture, both
“outside” organizations to the Treasury, are required to reim-
burse the FMS for postage in the same way the Social Security
Trust Funds are to reimburse the FMS for costs incurred in the
preparation, posting and payment of Social Security Trust
benefit payments. There is no such provision for Departments,
Offices, Agencies and Bureaus within the Treasury to reim-
burse said Department for any such expenditure!
8. Also in 31 U.S.C. § 306 said reimbursement by the
IRS is made for postage incurred by the FMS for making check
payments on behalf of the IRS; a “Mission Critical” function
such as postage is most certainly within the scope and mission
of the IRS.
9. The fact that the Commissioner is under the direction
and supervision of the Secretary does not overcome the fact
12
Continued...
that the IRS is not an Agency of the U.S. or of the Treasury. It
is apparent by this reimbursement policy that the IRS has its
own appropriations apart from that of the Treasury. In addi-
tion, the reimbursements required of the IRS demonstrate that
the IRS does not have Franking privileges as authorized by
Congress in its Act of March 8, 1868 (See Appendix E-1).
10. Petitioner tends to agree with U.S. Attorneys
RICHARDSON and WARD (See Appendix E-2) that the IRS is
not an agency of the U.S. and not part of the Treasury De-
partment. This evidence, and more, brings into question the
nature of the IRS as it relates to Citizens in the several states.
22 If the IRS is NOT an Agency of the U.S., then there is monu-
23 The Courts can suggest that the IRS has authority outside “the
District of Columbia” and within the several states but unless said
opinions also cite the law by which Congress has “expressly” extended
the authority of the Secretary to the several states, said opinions are
exactly that “opinion” and have no weight when deciphering the juris-
diction of the Secretary within the several states.
14
27 See Montelepre Systemed, Inc. v. CIR, 956 F.2d 496 at 498 (CA5
1992)
28 See 26 CFR § 1.83-3(e) (Appendix B-14), (f); MacNaughton v.
CIR, 888 F.2d 418 (CA6 1989) (Appx D-2); Pledger v. CIR, 641 F.2d
287, 293 (CA5 1981) (Appx D-3); Alves v. CIR, 734 F.2d 478, 481 (CA9
1984) (Appx D-4); Klingler Electric Co. v. CIR, 776 F.Supp. 1158, 1164
at [1] (S.D.Miss. 1991) (Appx D-5); Robinson v. CIR, 82 USTC 444, 459
(1984) (Appx D-6); Cohn v. CIR, 73 USTC 443, 446-47 (1979) (Appx D-
7).
29 See Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746, 757
(1883); Slaughterhouse Case, 83 U.S. 395, 419; 16 Wall. 36-130 (1873); Adair
v. U.S., 208 U.S. 161, 172 (1908); Coppage v. Kansas, 236 U.S. 1 (1915);
Black's Law Dictionary, 6th Ed., “Property.”
30 See 27 CFR § 70.150(b); U.S. v. Cartwright, 411 U.S. 546, 552
(1973); Hicks v. U.S., 335 F.Supp. 474, 481 (Colo.1971); Pledger v. CIR,
supra; Black's Law Dictionary, 6th Ed., “Arm's length transaction.”
17
33 See also the following cases for which excerpts are included in
Appendix D; MacNaughton v. CIR, 888 F.2d 418, 421 (CA6 1989):
Pledger v. CIR, 641 F.2d 287, 293 (CA5 1981): Alves v. CIR, 734 F.2d
478, 481 (CA9 1984) See Cohn v. CIR, 73 USTC 443, 446-47 (1979).”
Klingler Electric Co. v. CIR, 776 F.Supp. 1158, 1164 at [1] (S.D.Miss.
1991) Robinson v. CIR, 82 USTC 444, 459 (1984) Cohn v. CIR, 73
USTC 443, 446-47 (1979) Concurring with Cohn, Alves, see Centel
Communications Co. v. CIR, 920 F.2d 1335, 1342 (CA7 1990) Annota-
tions / Public Law.
34 Since the IRC § 83(a) deduction is taken from compensation be-
35 The Court states “Noting that the power of the Congress to tax
CONCLUSION
For the reasons set forth herein, Petitioner urges this
Court to grant review in this case.
I have reviewed this Petition and the Appendix
attached hereto and to the best of my knowledge and
belief they are true and correct.
I further affirm under penalty of perjury under the
laws of the United States of America, that the foregoing is
true and correct.
Executed this 29th day of August, 2006.
Respectfully submitted,