UNITED STATES COURT OF APPEALS, FOR THE NINTH CIRCUIT John Henry Ryskamp, No. 1817324 Petitioner-Appellant Tax Ct. No. 20628-17 United States Tax Court v. Commissioner of Internal Revenue, Respondent-Appellee. PETITIONER-APPELLANT’S INFORMAL BRIEF 1, JURISDICTION: Date proceedings initiated: 10/02/2017 Date agency’s decision entered: 04/27/2018 Date petition for review filed: 05/04/2018 2. WHAT ARE THE FACTS OF YOUR CASE? On September 25, 2017, the Commissioner sent me the letter LT 16 (hereinafter “the letter”) alleging that [had failed to pay individual income taxes for 2003, 2005, 2006, 2009 and 2010. I wrote “Notice of Determination” on this letter and filed a petition in the Tax Court. 3. PROCEEDINGS BEFORE THE AGENCY © What forms of relief did you request?9! Cir. Case No. 18-71324 Page 2 I requested that, before any collections, including issuance of the letter, the Tax Court require that the Commissioner consider my case in light of substantive Due Process rights, which rights were alleged in the petition. * What did the agency do? ‘The Tax Court dismissed the case, stating that it did not have jurisdiction because no formal Notice of Determination had been issued, and that it was bound by its jurisdictional rules not to consider the letter as a Notice of Determination for purposes of jurisdiction to adjudicate the substantive Due Process rights violations alleged in the petition. 4, PROCEEDINGS BEFORE THE NINTH CIRCUIT © What issues are you raising agency did wrong? n this Court? What do you think the The Tax Court violated Fifth Amendment substantive Due Process when it said that it lacked jurisdiction to adjudicate the alleged substantive Due Process rights violations. Fifth Amendment substantive Due Process mandates that whenever a petition in the Tax Court alleges violations of substantive Due Process rights, the Tax Court has jurisdiction to adjudicate alleged violations of substantive Due Process rights, and must adjudicate all those alleged violations, and in detail. Pleading requirements are subject to substantive Fifth Amendment due process. ‘The case of Ryskamp v. Commissioner, 797 F.3d 1142 (D.C. Cir, 2015), in which 1 was the prevailing Petitioner-Appellant, stated that when the Commissioner refuses to grant a Request for a Collection Due Process hearing, it must provide reasons The Request I made, was made on the basis of allegations of substantive Due Process rights which were also made before the Tax Court in the instant case, and which are restated in the Attachment to this Brief. Now the Tax Court has taken on itself the role forbidden to the Commissioner: the ‘Tax Court has decided it does not have to give reasons when a petitioner in the Tax Court alleges substantive Due Process rights violations. Specifically, the Tax Court rejects the notion that the requirement of a Notice of Determination for the Court's jurisdiction, is itself subject to substantive Due Process. This is a legal error.9" Cir. Case No. 18-71324 Page 3 However, the Tax Court did not simply rule that there was no Notice of Determination. It went on the reject the allegations of substantive Due Process rights violations. Thus, it contradicted itself. It actually did consider the issues, and then, once it decided that there were no substantive Due Process violations, it decided that there was no Notice of Determination. This shows that the Tax Court itself recognizes that the Notice of Determination requirement is subject to substantive Due Process. This case, and the D.C. Circuit’s Ryskamp case, are part of a trend toward eliminating artificial pleading requirements—in effect, code pleading—which the Tax Court has traditionally used to attempt to insulate itself from having to adjudicate allegations of substantive Due Process rights violations. So, in addition to incorrectly ruling that the Notice of Determination requirement was not subject to substantive Due Process, the Tax Court also ruled incorrectly on the allegations of substantive Due Process rights violations. The Attachment sets forth exactly the same allegations of substantive Due Process rights violations, as were made before the Tax Court. © What legal arguments support your position? ‘The D.C. Circuit's Ryskamp decision was a substantive, not a procedural, Fifth ‘Amendment Due Process case. This is why the case is important. In that case, my Request for a Collection Due Process hearing was rejected after, not before, the Commissioner had evaluated the allegations of substantive Due Process rights violations, and the Request was rejected because the Commissioner disagreed with the violations. The Tax Court proceeded in precisely the same way, and in doing so it has violated its own jurisdiction; this violation is itself a violation of my substantive Due Process rights. The Tax Court is not a part of the Executive Branch, and cannot use tax process in order to violate its own jurisdiction, ‘The legal arguments in support of the allegations of violations of substantive Due Process rights, are contained in the Attachment. * Do you have any other cases pending in this Court? If so, give the name and docket number of each case.Attachment to Informal Brief, 18-17325 This case presents the following questions: 1. AS a matter of substantive Due Process, must the person who is undergone the appointment process? ‘As a matter of substantive Due Process, was the letter issued in violation of the right to housing? 3. Asa matter of substantive Due Process, must taxation maintain housing under the Taxpayer Bill of Rights in conjunction with the National Housing Goals? 4, Is taxation an individually enforceable right under West Virginia v. Barnett 5. What remedies are available regarding the Notice of Determination, and under the All Writs Act and provisions for class certification? 6. Did the Tax Court exercise bias against the adjudication of substantive Due Process rights, and against substantive Due Process rights, in violation of Masterpiece Cakeshoy 7. 1s Collection Due Process a substantive Due Process right? INTRODUCTION ‘axation, in its entirety, is subject to substantive Due Process. ‘The Ryskamp D. C. Circuit ‘Court decision said that when a taxpayer raises substantive Due Process issues, the Commissioner must answer them, ‘The form in which they are raised is not determinative, and must not be a bar to the Tax Court’s jurisdiction, What are a taxpayer's substantive Due Process rights? It was a Fifth Amendment violation for the Tax Court to fall back on mechanical recitations about whether 1this or that document, sent to a taxpayer, are a Notice of Determination for purposes of the Court's jurisdiction, because Ryskamp is binding on the Court, as well as on the Commissioner. When the Commissioner has substantive Due Process duties, and fails to carry them out, this Court is bound to exercise its jurisdiction in order to remedy violations of substantive Due Process rights. Nothing permits the Tax Court to hide from making the determination as to whether substantive Collection Due Process rights have been violated. Whatever processes, procedures, rules or statutes are invoked, they must harmonize with substantive Due Process rights, I ASA MATTER OF SUBSTANTIVE DUE PROCESS, MUST THE PERSON WHO ISSUED THE LETTER HAVE UNDERGONE THE APPOINTMENT PROCESS? Mechanical invocations do not insulate the Court from having to decide whether the state of the Jaw, and the state of factual findings by the government, change the substantive Due Process law of taxation. The person who issued the letter in the present case is a principal officer of the United States who must have been—and was not—appointed by the President and not subject to removal for cause. ‘The government has changed its legal position, based on its examination of the facts, in two areas relevant to this case. It has examined the facts regarding the discretion exercised by persons issuing the letter, and has examined the facts of housing as it enters into the Collection Financial Standards, which is used in the process of issuing a Notice of Determination, and which is the individually enforceable objective of the Taxpayer Bill of Rights. What is more, the government is required, under the Taxpayer Bill of Rights, to evaluate the level of scrutiny for housing. These considerations apply to the letter‘The government has found that persons issuing the letter must be appointed in conformity with the Appointments Clause, and must apply a higher level of scrutiny for housing than minimum, scrutiny, ‘The person issuing the letter was not so appointed, and did not so apply the level of scrutiny for housing, Therefore, the letter in the present petition is void on substantive Due Process grounds, and so as a matter of substantive Due process, is a Notice of Determination for finding jurisdiction in this case. This is an example of the way in which changes in the law have implicated or overridden the cases cited by the Tax Court, ‘The letter was not issued by a person appointed in conformity with the Appointments Clause. According to the government itself, the person issuing the letter exercises sufficient discretion that the person had to have been appointed in conformity with the Appointments Clause. The letter in this case was not issued by a persons appointed in conformity with the Appointments Clause. ‘Therefore, the letter is void and cannot be acted on, and is a Notice of Determination for purposes of the jurisdiction of this Court. Lucia and the Issuance of the Letter in the Present Case In courts of appeals, the government took the position that SEC ALJs were mere employees, so there was no problem in the fact that SEC ALJs had been issuing recommended rulings on administrative sanctions matters without having first been appointed. Two Circuits had split on this question: The Tenth Circuit held that SEC ALJs need to be appointed; Bandimere v. SEC, 844 F.3d 1168 (10" Cir. 2016); while the D.C. Circuit held that they did not. Raymond J. Lucia Cos., Inc. v. SEC, 832 F.3d 277 (D.C. Cir. 2016). The Supreme Court granted certiorari in Lucia on January 12, 2018,‘The surprise is that in the Solicitor General's response to the cert, petition in Lucia he would change position 180 degrees and argued that SEC ALIs have to be appointed. ‘This means that both of the parties to the Lucia case argued for its reversal, Central to the Lucia case is what the Court meant in Freytag v. Commissioner, S01 U.S. 868 (1991), when itheld that Tax Court Special ‘Trial Judges (STJs) were inferior officers of the United States who need to be appointed. In Freytag, the Supreme Court held that the Appointments Clause did not prohibit the Tax Court's: Chief Judge from appointing STJs because the Tax Court was one of the “Courts of Law” ‘mentioned in the Clause and because the Chief Judge could act for the Tax Court, In reaching these rulings, the Supreme Court made a subsidiary holding that STJs are not employees of the government, but inferior officers who need to be appointed. To support its holding that STJs are officers, the Supreme Court cited the many judicial duties that STJs perform. At the end of this, section of the opinion, the Supreme Court also observed that STJs can enter final decisions in some cases under § 7443A(c). It is this finality observation that puzzled and split the lower courts. In Landry v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000}, a majority of a 3-judge panel of the D.C. Circuit held that the Supreme Coutt’s observation in Freytag that STJs can rule with finality in some cases meant that being able to make a final ruling was a but for requirement of officer status. Since FDIC ALJs could not enter final rulings, but simply made recommended rulings to the whole FDIC, the majority held that the ALIs were mere employees who did not need to be appointed. ‘The third judge on the panel argued instead that, in Freytag, the Supreme Court had already decided that STJs were officers before it made the observation about STJs being in some cases allowed to enter final orders, so finality was not a but for requitement of an officer. Like FDIC ALIs, SEC ALJs cannot make final rulings — at least where defendants appeal their proposed ruling to the whole SEC. In Lucia, citing Landry, the D.C. Circuit held that SEC ALJs 4need not be appointed because they did not have final ruling authority. After Bandimere was issued, Lucia moved for reconsideration of the ruling in his case by the full D.C. Cireuit. He asked the D.C. Circuit to consider whether it should overrule Landry and agree with the Tenth Circuit in Bandimere. An en banc rehearing was granted. However, the en bane D.C. Circuit split evenly on the question, which left the original holding in Lucia intact. Lucia then sought cert In response to Lucia’s cert. petition, the new Solicitor General under President Trump surprisingly changed the government’s position ~ agreeing with the Tenth Circuit that the ability to issue final rulings was not a but for requirement of officer status. The Solicitor General felt that the SEC ALJs were sufficiently like Tax Court STJs to have to be appointed. Thus, the Solicitor General also sought reversal of the D.C. Circuit. In addition to Lucia’s possible impact on ALJs used by Treasury to hold Circular 230 sanctions heatings, the opinion is relevant to taxation overall, and the government's change of position is in accord with the position that persons issuing the letter in the instant case, must be appointed in conformity with the Appointments Clause. The duties of IRS personnel in determining tax collections, are so similar to the duties of an STY that such personnel are also principal officers for purposes of the Appointments Clause, must be appointed by the President, and are not subject to removal for cause. Ina Collection Due Process case, Tucker v. Commissioner, 135 T.C. 114 (2010), the Tax Court rejected the argument for several reasons. For one thing, the court felt that the positions in Appeals were not “established by law” for purposes of the Clause—another attempt by the Tax Court to shield itself from having to adjudicate substantive Due Process claims by divoreing process from substantive Due Process. But, also, the Tax Court held that Appeals personnel in CDP did notmake final rulings, and, citi 1g Landry, the Tax Court held that the ability to make a final ruling ‘was a but for requirement of officer status per Freytag. Tucker was appealed to the D.C. Circuit. That court, at 676 F.3d 1129 (D.C. Cir. 2012), affirmed the Tax Court, but on different reasoning. The D.C. Circuit was troubled by the idea that Congress might be able to get around the Appointment Clause by assigning duties that had to be performed by a constitutional officer to preexisting employees in the bureaucracy, Therefore, the DC. suit bypassed issuing any ruling on whether or not the position of CDP hearing person was “established by law.” The D.C. Circuit next held that collection issues were of too minor importance to require an officer. Needless to say, the issue in the present case is a collections issue. ‘As to underlying tax liability rulings that could be made in CDP under section 6330(c)(2)(B), Freytag clearly would treat those rulings as ones for which an officer was required. Obviously, this distinction is obliterated where, as here, the taxpayer is making allegations of violations of substantive Due Process rights. There are no “minor” substantive Due Process allegations, and, again, taxation in s entirety is subject to substantive Due Process. Disagreeing with the Tax Court, the D.C. Circuit held that Appeals Office personnel issuing underlying liability rulings issued rulings with “effective finality.” However, the D.C. Circuit held that the ability to exercise discretion in a tax liability ruling was a but for requirement of officer status ~ one that was not met by Appeals personnel who ruled under the thumb of IRS Counsel attorneys. It was this lack of discretion that undermined the idea that Appeals personnel in CDP were officers needing to be appointed. By its position in Lucia, the government disagreed. It has made a factual determination that discretion is sufficiently exercised—that is, that taxation is in its entirety is subject to substantiveDue Process—that persons issuing the letter, must be appointed in conformity with the Appointments Clause. The factual grounds on which the government relies for its change of policy regarding persons who issue the letter, are in arguments made by taxpayers in the Tax Court: Thompson, Docket No. 7038-15L; Elmes, Docket No. 24872-14L; Fonticiella, Docket No, 23776- ISL; and Crim, Docket No. 16574-17L. Lucia is no longer good law, and since the letter in this case was issued by a person who was not appointed in conformity with the Appointments Clause, itis void and is a Notice of Determination for purposes of the Tax Court’s jurisdiction, and, as a maiter of substantive Due Process, my petition in the Tax Court should not have been dismissed. ‘The Supreme Court's Lucia Decision ‘The Supreme Court issued its Lucia opinion on June 21, 2018 (585 U.S._[2018]).._ Lucia is a substantive Due Process ruling. The standards it applied show clearly that the person issuing the letter in the present case must have been appointed in conformity with the Appointments clause; the person was not so appointed. The opinion also shows us the remedy in the present case. Applying the Lucia criteria, it is clear that the person who issued letter exercises significant authority pursuant to the laws of the United States. The letter is part of collections, that is, itis an enforcement action reflecting the same processes listed in Lucia (Slip Op. at 9); the person who issued the letter first prepared “findings and an opinion adjudicating charges and assessing tax liabilities.” The letter contains “factual findings, legal conclusions, and appropriate remedies.” Since the Tax Court in this case has indicated that the letter is not reviewable, the person issuing the letter functions, for Due Process purposes, as a Tax Court Judge. Indeed, the person issuing the letter has more authority than a Special Trial Judge, whose decisions need not be adopted by the Tax Court—and Special Trial Judges are subject to the appointments process. If they are, then so is the person who issued the letter.‘The person who issued the letter must apply the law to the facts (including the substantive Due Process rights asserted herein), before exercising that authority. This certainly was not done before the letter was issued, nor will the Commissioner claim that it was done. And, as the Lucia Court says, the person must be a new person, and before a new letter can be issued, there must be “a new ‘hearing before a properly appointed” official.” Slip Op. at 12. ‘This is a Collection Due Process hearing. And Lucia makes it clear that, contrary to what the Tax Court held in the present case, assertions of violations of substantive Due Process rights—which allegations were made in the ‘Tax Court—must be adjudicated by the new person, ‘There can be no question that the letter was issued in violation of substantive Due Process. As to the Office of Appeals, its employees clearly must be appointed in conformity with the Appointments Clause, according to section 6330. ‘The hearing is to be held by an “Impartial Officer,” and that officer must “obtain verification from the Secretary” that Due Process has been satisfied, The Secretary must provide the verification, not the Commissioner. ‘The intent is to have an independent review of the ease. ‘The person issuing that verification exercises discretion at such a level that that person must also have been appointed in conformity with the Appointments Clause. The verification is not proforma. It is mentioned again in 6330, when the Code says the determination must take into account the verification. ‘The person issuing the verification passes on all Constitutional questions presented in the hearing. Note that the person issuing the verification must show “that the requirements of any applicable law or administrative procedure have been met.” This means that meeting administrative requirements are only one prong of the test; “any applicable law” means every Due Process issue. ‘Thus, the Collection Due Process hearing, in all the collections actions prior to, and succeeding itand with respect to all the persons involved in those actions—is, for substantive Due Processpurposes, in all ways identical to the hearings held by Special Trial Judges, and those Judges must be appointed in conformity with the Appointments Clause, Of course, the Court in the District of Columbia's Appeals Court case of Tucker v. Commissioner made much of the informal nature of CDP hearings to show that CDP hearings officers need not be appointed according to the Appointments Clause. That Court is wrong: what the Court cites as informality, is, instead, Constitutional infirmity; after Lucia, Tucker is no longer good law. In particular, the Tucker Court makes no mention of the verification, or its role in determining whether CDP hearing officers must be appointed. This Court must decide what is the nature of the CDP hearing—and indeed, of the entire collections process—according to what substantive Due Process says, not according to what the Code says. The Code is subject to substantive Due Process, and must always harmonize with it, and never supersede it I. AS A MATTER OF SUBSTANTIVE DUE PROCESS, WAS THE LETTER ISSUED IN VIOLATION OF THE RIGHT TO HOUSING? The about-face in Lucia is only the latest in the process of the government revisiting the facts and coming up with a better view. ‘This is an ongoing process, as the West Coast Hotel/Carolene Products “scrutiny” Constitutional regime is superseded. ‘The government has also found, as a matter of fact, that housing enjoys a higher level of scrutiny than Lindsey v. Normet minimum scrutiny. ‘Therefore, the person issuing the letter had to have applied the Collection Financial Standards (which includes a housing provision) at a higher level of scrutiny than minimum scrutiny, before sending the letter. That was not done, and the failure to do it was a substantive Due Process violation. ised the Since the D.C. Circuit issued Ryskamp, the United States has overvidden Lindsey and ra level of Constitutional scrutiny for housing above minimum scrutiny, and the evidence in the 9record shows this. The government raised the level of scrutiny for housing in response to the Lindsey argument set forth in Ryskamp. This means that collections actions, including the letter, must meet the Constitutional requirements of Collection Due Process including the Collection Financial Standards. Among these requirements is the requirement that all collections actions, including withholding, establishment of rates, spending and all other issues related to taxation, ‘must be preceded by an evaluation of the taxpayer in order to maintain housing. ‘The maintenance of housing is a Constitutional requirement of a level of scrutiny for housing above minimum scrutiny. No such evaluation was done in this case. The law of substantive Due Process is that policy, including taxation, relating to facts which enjoy a higher level of scrutiny than minimum scrutiny, must maintain those facts. Since Ryskamp, the United States has filed the Statement of Interest in the Bell v. Boise case and issued the Affirmatively Furthering Fair Housing Rule (“AFFHR”) after the Supreme Court issued Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Ine. The factual findings of the government show that it has raised the level of scrutiny for housing, and that housing enjoys a higher level of scrutiny than minimum scrutiny. Lindsey indicates why housing enjoyed only minimum scrutiny under the case: “We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality, or any recognition of the right of a tenant to occupy the real property of his landlord beyond the term of his lease without the payment of rent or otherwise contrary to the terms of the relevant agreement. Absent constitutional mandate, the assurance of adequate housing and the definition of landlord- tenant relationships are legislative, not judicial, functions. Nor should we forget that the 10Constitution expressly protects against confiscation of private property or the income therefrom.” There are two factual assumptions on which the Court's statement is grounded: 1. the indicia of housing are not unchanging facts of human experience; 2, there is no faimess factual indicium of housing, either qua housing of in the property component of housing. The Statement of Interest directly contradicts the first factual statement, superseding it with the factual finding that the indicia of housing are unchanging facts of human experience. One such indicium is sleep, and the Statement said that it is one of the “universal and unavoidable consequences of being human.” The assault on housing, termed “homelessness” in the Statement, showed that this fact was an “involuntary and inseparable” indicium of housing. Housing as a Right Under West Virginia v. Barnette ‘The indicia of housing are unchanging facts of human experience, pursuant to the test, given below, for \dividually enforceable rights in West Virginia v. Barnette (see 1V, below). ‘The factual findings of the United States also contradict the idea that there is no fairness factual component of housing. This is done in the Affirmatively Furthering Fair Housing Rule. In direct response to the complaint that the “rule will subvert private property laws” the United States responded that the not only is faimess an indicium of housing and property, but also that furthering fairness is in fact is an indicium of housing and property: fairness is an “existing legal obligation to affirmatively further fair housing.” Rule at 42309. Indeed, at EVERY point in the Rule in which property is discussed, the United States counters the Lindsey formulation with the finding that fairness is an indicium of both housing and property. See Rule at 42295, 42301, 42310. Indeed, the United States finds as other indicia of housing, “equity, human dignity, and faimess.” uRule at 42348. Indeed, the Rule incorporates an earlier Government directive that regulations are to “consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.” Rule at 42328-42349, This directly and intentionally contradicts the Lindsey Court's statement that “the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality, or any recognition of the right of a tenant to occupy the real property of his landlord beyond the term of his lease without the payment of rent or otherwise contrary to the terms of the relevant agreement.” ‘The United States has found that the factual foundations of Lindsey are simply not true facts, and so has superseded the Lindsey holding that housing enjoys only minimum scrutiny. No taxation, including process and the letter in the present case, can be administered or enforced by the Commissioner before the Collection Financial Standards are applied to a taxpayer including a higher level of scrutiny for housing than minimum scrutiny. A substantive Due Process right to housing must be addressed by this Court—housing is a part of the Collection Financial Standards, which are applied in both collections and Collection Due Process. ‘The Tax Court’s blatant disregard for this obvious requirement, requires a reversal of the Tax Court's dismissal of the petition in the instant case. ‘The Affirmatively Furthering Fair Housing Assessment Tool for Public Housing Agencies Announcement of Final Approved Document and Announcement of Renewal of Approval of the Assessment Tool for Local Governments Federal Register /Vol. 82, No. 9 / Friday, January 13, 2017, 4373-4403 In the Announcement of the Approved Document, the United States, has through extensive restatement of comments submitted by me, made it clear that the United States feels that its factualfindings have superseded Lindsey and raised the level of scrutiny for housing above minimum scrutiny. The “commenter” in the statement below, is me. ‘The United States says: A commenter asked whether the Tool raises the level of scrutiny for housing above Lindsey v. Normet's minimum level of scrutiny, The commenter stated that Lindsey v. Normet, held: (1) There is no fairness component of housing because there is no faimess component of property, and (2) there is homelessness. The commenter stated that in the Tool and the policies underlying it, the Government finds that fairness is a component of property and housing; further, dignity is the essence of the Tool and a component of housing. The commenter noted that in the Government's statement of interest in the Boise homelessness case, the government found that homelessness does not exist as homeless people are housed people whose housing is assaulted. The government's policies show that housing has higher level of scrutiny than minimum scrutiny, and the Supreme Court in the same-sex ‘marriage case found that dignity is an individually enforceable right with a higher level of scrutiny than minimum scrutiny. The commenter asked: Does housing enjoy a level of serutiny higher than minimum serutiny? According to West Virginia v. Barnette, a fact is, an individually enforceable right in court, and the level of scrutiny is raised, if, inter alia, the fact is “unaffected by assaults upon it.”” Does the government deny that this is the test? Has the government found that housing passed this test? Who has the power to enforce the Rule in court and pursuant to what right? What parts of these policies are individually enforceable? Ar 4387. The Department responde “HUD reviewed the case law cited by the commenter and has concluded that the cases are not applicable to the obligation to affirmatively further fair housing under the Fair Housing Act and under the AFFH rule. HUD continues to assert that the AFFH rule 13and the Assessment Tool implementing the requirements contained in the regulation will better facilitate compliance with the AFH mandate under the Fair Housing Act.” At. 4387. This shows that the remit of the United States is to enforce the act. However, it does not deny that the factual findings in my comment are those of the United States, and clearly poses the question for resolution, as a legal question, by the Court. ‘Then, in the Announcement of Renewal, the United States again sets out the legal argument from the facts, contained in my comment: One commenter asked whether the tool raises the level of scrutiny for housing above Lindsey v. Normet's minimum level of scrutiny. The commenter stated that it is clear that the Administration does not want to raise the level of scrutiny because that would move housing issues from the political process to the courts, nonetheless, the Administration has clearly concluded that Lindsey is no longer good law. The commenter stated that the tool proposes faimess and dignity components to property (whereas Lindsey did not raise the level of scrutiny because that would interfere with the right to property). The commenter stated the Administration's statement of interest in Bell v. Boise stated that homelessness is an individual who is “assaulted, unconstitutionally, in her or his housing.”” The commenter asked the following questions: What is the relation between the statement of interest and the tool? According to West Virginia v. Barnette, a fact is an individually enforceable right in court (vs. a fact for the political process), and the level of scrutiny is raised, if, inter alia, the fact is ‘unaffected by assaults upon it." Is it the position of the Tool that housing is such a fact? What is the relation of the Collection Financial Standards (CFS) housing component to the tool? The commenter stated that according to Lindsey, the level of scrutiny for housing cannot be raised, and that Lindsey was premised on there not 14being a faimess component to housing and that there is such a thing as homelessness (which, is contradicted by the Boise Statement of Interest). The commenter stated the tool contradicts both of these premises. The commenter stated that the government should give don an instruction in the Tool (or explain why it did not) stating that the Tool is premis the policy that Lindsey is no longer good law, housing is an individually enforceable right, and the level of scrutiny is above the minimum level.” Ar 4402. Again the Department did not dispute any of the factual findings of the United States, but instead made it clear by this extensive quotation, and by its statement that feels bound by the terms of the the aw under which the Rule is promulgated, not to say what it otherwise would say: that the United States, through its findings of fact, has superseded Lindsey and raised the level of scrutiny for housing: “HUD reviewed the case law cited by the commenter and has concluded that the cases are not applicable to the obligation to affirmatively further fair housing under the Fair Housing ‘Act and under the AFFH rule. HUD continues to assert that the AFFH rule and the Assessment Tool implementing the requirements contained in the regulation will better facilitate compliance with the Al mandate under the Fair Housing Act.” At 4403. ‘Thus, the substantive Due Process question of the right to housing is clearly before this Court based on the letter. I AS_A MATTER OF SUBSTANTIVE DUE PROC! MUST TAXATION MAINTAIN HOUSING UNDER THE TAXPAYER BILL OF RIGHTS IN INJUNCTION WITH THE NATIONAL HOUSING GOALS: The objective of the Taxpayer Bill of Rights, 26 USC 7803(a)(3), is individually enforeeable, and taxation is the objective of the Taxpayer Bill of Rights. The Courts are now referring matters to the Taxpayer Bill of Rights: Harris, Docket No, 15433-168; Facebook v. Internal Revenue Service 15(Case 3:17-cv-06490, Northern District of California). The objective of the Taxpayer Bill of Rights must harmonize with the objective of the National Housing Goals, 42 USC 1441, which has also been found to be individually enforceable. The objective of the housing goals is “a decent home and a suitable living environment.” Thus, the Commissioner is required to provide a reasoned response to the factual finding that the government has superseded Lindsey and found that housing enjoys a higher level of scrutiny. That higher level of scrutiny must be applied to a taxpayer's facts before the letter can be issued. ‘The Taxpayer Bill of Rights shares a similar structure with the National Housing Goals, which have been the subject of housing litigation. According to the Taxpayer Bill of Rights, In discharging his duties, the Commissioner shall ensure that employees of the Internal Revenue Service are familiar with and act in accord with taxpayer rights as afforded by other provisions of this ttle, including, 26 U.S.C. 7803(a)(3) (emphasis added). The statute then lists the particular rights that the Commissioner must protect when discharging its duties. Similarly, the National Housing Goals provide directives for federal agencies addressing housing: ‘The Department of Housing and Urban Development, and any other departments or agencies of the Federal Government having powers, functions, or duties with respect to housing, shall exercise their powers, functions, and duties under this or any other law, consistently with the national housing policy declared by this Act and in such manner 16as will facilitate sustained progress in attaining the national housing objective hereby established . . . 42. U.S.C. 1441 (emphasis added). As with the Taxpayer Bill of Rights, the National Housing Goals then list specific objectives for housing agencies to attain, The National Housing Goals have not simply served as lofty goals that lack practical meeting. Rather, Courts have looked to the National Housing Goals in evaluating, whether a housing agency has acted appropriately. For example, in United States v. Winthrop Towers, 628 F.2d 1028 (7th Circuit 1980), HUD sued to foreclose on a low-income housing development. The owner of the development argued that the decision to foreclose was not completely committed to agency discretion, Even if there was no law to apply, the owner argued that the agency had to act consistent with National Housing Goals. The court agreed and stated: In this case the law to be applied includes s 2 of the National Housing Act, 42 U.S.C. 1441, which contains a detailed statement of national housing objectives, as well as 42 U.S.C 14da, 42 U.S.C. 1437 and 12 U.S.C. 1715I (a). Section 1441 specifically provides that HUD shall exercise its powers and perform its duties “consistently with the national housing policy declared by this Act... .”. This language compels our conclusion that HUD’s decision to foreclose may be reviewed to determine whether itis consistent with national housing objectives. Id. at 1034-35 (emphasis added), Simply put, the National Housing Goals go beyond general standards — the goals are individually enforceable. As the Seventh Circuit stated, “the language of s 1441 ‘is not precatory; HUD is obliged to follow these policies. Action taken without consideration of them, or in conflict with 7them, will not stand.”” /d. at 1035 (emphasis added) (quoting Commonwealth of Pennsylvania y, Lynn, 501 F.2d 848, 855 (D.C.Cir.1974)); see also Russell v. Landrieu, 621 F.2d 1037 (9th Cir, 1980); Lee v. Kemp, 731 F.Supp. 1101 (D.D.C, 1989). Likewise, actions of the Commissioner, such as the letter, taken without consideration of the objective of Taxpayer Bill of Rights—which includes the individually enforceable right (0 housing—or in conflict with the Taxpayer Bill of Rights, will not stand. ‘The National Housing Goals have specifically limited agency action in rulemaking as well. In United States v. Garner, 767 F.2d 104 (5th Cit. 1985), borrowers with loans from the Farmers Home Administration (“FmHA”), a subdivision of the USDA, challenged the validity of a regulation that prevented the agency from refinancing its own loans. In reviewing whether the agency acted in an arbitrary and capricious manner, the Fifth Circuit noted that [In enacting the section 502 loan program and its amendments, Congress generally intended the Secretary to exercise his refinancing authority in accordance with the goals of national housing policy as defined in the Act, For our purposes, the most important among these is providing government credit to responsible rural borrowers in jeopardy of losing their homes through no fault of their own. See 42 U.S.C. § 1441 Id, at 121, After considering the record, the Fifth Circuit held “the government has failed to demonstrate that regulation 7 CER. § 1944.22(a), prohibiting the FmHA from refinancing its own loans, is a product of reasoned decision making.” /d. at 123. ‘The Collection Financial Standards, and the elevated level of scrutiny for housing, make the objective of taxation, identical to the objective of the National Housing Goals. The objective of 18the CFS is the objective of the National Housing Goals. The CFS is “to provide for basic living expenses” for housing and to allow taxpayers an adequate “meat of providing for basic living expenses” for housing, See hitps://www.irs. gov/businesses/small-bu employed/collection-financial-standards. This is an individually enforceable objective. IV. IS TAXATION AN INDIVIDUALLY ENFORCEABLE RIGHT UNDER WEST ‘The Tax Court clearly proceeded under the assumption that the Constitutional regime is still that of West Coast Hotel and its progeny, in which most of the power over most of the facts resides in the political system; under that system, taxation is either a burden or a power—considered as a right, policy affecting taxation need only meet minimum scrutiny. That is no longer the law of taxation. TI was clearly shown in Lucia, in which opposition to the Supreme Court's finding ‘was based strictly on scrutiny regime minimum serutiny and discretion within the political system. The D.C. Circuit Court, in Ryskamp, puts the duty of the Commissioner—and therefore of the Tax Court—at a higher level of scrutiny than minimum scrutiny: the Tax Court must give reasons because taxation is at a higher level of scrutiny than minimum scrutiny; that affects not only how the Commissioner and the Tax Court proceed, but also, the standards according to which they proceed. Taxation is an individually enforceable right. The doctrine of the Constitutional regime is now that the law only maintains unchanging facts of human experience. The United States conducted historical factual investigation of housing in order to determine that it enjoys a level of scrutiny above minimum scrutiny. It did so pursuant to the test for a right, promulgated by West Virginia v. Barnette: if a fact is, 1. a fact of human experience 2. which history demonstrates 193. is an unchanging fact of human experience then it is an individually enforceable right—in scrutiny regime terms, it enjoys a higher level of scrutiny than minimum scrutiny, However, all the facts of the Collection Financial Standards are there because the government has subjected them to that test, and found that those facts passed that test. What is more, the AFFHR indicates that such facts as education and medical, both of which are CFR facts, are indicia of housing, and housing is an indicium of them. In short, they are unchanging facts of human experience, Is the Barnette analysis the Constitutional regime? ‘That is the substantive Due Process question for this Court. Since housing is an individually enforceable right, according to the United States, according to the Collection Financial Standards, and according to the National Housing Goals, and is enforceable as the objective of the Collection Financial Standards, it must be maintained by this Court through the process of the Court harmonizing the Tax Court's and the Commissioner's laws, processes and procedures, with the new right. As a matter of law, it cannot be that a substantive ‘Due Process right fails of enforcement because the Tax Court hides in the mechanical application of formulae, in order to deny its own jurisdiction so that it does not have to deal with the invocation of substantive Due Process rights. That is the lesson both of Thornberry v. Commissioner and of the D, C. Circuit case which upheld Thornberry, Ryskamp. These cases are binding on the Tax Court, as well as on the Commissioner. They do not allow the Court to do what the Commissioner cannot do, We have clear Barnette tights in taxation, spending, appropriating, legislating and money. See, as a scholarly introduction to this area, Margaret Atwood Judson, The Crisis of the Constitution: An Essay in Constitutional and Political Thought in England 1603-1645, 1949. ‘The assault upon taxation, spending, appropriating, legislating and money, familiarly known as ship money, was the 20impetus for the American Revolution and the Constitution, both of which defeated the assault, showing these are robust, resilient and recurrent fact of human experience—thereby fulfilling the Barnette test for individually enforceable rights. Both the success of the American Revolution, and of the Constitution itself, show these facts as unaffected by the ship money assault. The arguments against the constitutionality of ship money—that it assaulted these facts—were made against the Stamp Act. Indeed, the case of the Founders was, in many instances, a word-for-word echo of the constitutional case developed over a century earlier by English lawyers, for example Oliver St John, lead counsel for the defense in the major ship money prosecution. Alexander Hamilton explicitly stated that the Constitution was the triumph of these facts over the ship money assault upon them. In Volume 5 of the Debates on the Adoption of the Federal Constitution, he “pointed out the difference between the nature of the constitution of the British executive and that of the United States, in answer to Mr. Lee’s reasoning from the case of ship-money.” P. 57. Thus, history shows an assault on these facts of human experience—an assault by the state, no less, and vindication of these facts by the establishment of a new governing order, no less (the Constitution). Indeed, the Declaration of Independence itself is both an indictment on grounds of ship money, and the vindication of these facts. When the Declaration indicts “for imposing taxes on us without our consent,” itis indicting ship money. When the Declaration indicts “for suspending our own legislatures,” itis indicting assaults upon these facts. The gravamen of Article I, Section 9, Clause 7 is assaults upon these facts; “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” The letter in the instant case, is ship money. 21us, under Barnette, appropriating, borrowing, spending and legislating are individually enforceable rights, and the Commissioner is required to evaluate the level of scrutiny for housing under the individually enforceable rights to taxation, spending, appropriating, legislating and money, before issuing the letter. A clear and consistent doctrinal line is drawn directly from the nature of the Constitutional and the Constitutional regime, to the right to housing, to taxation as a substantive Due Process right. V. WHAT REMEDIES ARE AVAILABLE REGARDING THE NOTICE OF DETERMINATION, AND UNDER THE ALL WRITS ACT AND PROVISIONS ‘The All Writs Act In the alternative, where, as here, a petitioner in the Tax Court alleges substantive Due Process violations, the Tax Court must order the Commissioner to issue a Notice of Determination, in order to give the Court jurisdiction to adjudicate the substantive Due Process claims. The argument in >. Dock sioner, Insinga v. Commis t No. 4609-12W, applies equally here, In that case, the Court said: “[T]he ‘All Writs Act’ (28 U.S.C. § 1651) applies to ‘all courts established by Act of Congress" (cf 26 U.S.C. § 7441, establishing the U.S. Tax Court); and the U.S. Court of App for the D.C. Circuit has held in Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 75 (D.C. Cir, 1984)...that, in view of the APA and the All Writs Act, ‘it is clear-and no party disputes this point-that’ if a statute (there, 28 U.S.C. § 23421(1)) confers on a court exclusive jurisdiction to review a final agency order, then even before the final order has been issued, the court has ‘jurisdiction over claims of unreasonable [agency] delay.”” The failure of the Commissioner to apply substantive Due Process standards to my case before issuing the letter, is 22unreasonable delay and a substantive Due Process violation, and when the substantive Due Process violations were presented to the Tax Court in the petition, the Tax Court was obliged to order the Commissioner to issue a Notice of Determination in order to give the Court jurisdiction to adjudicate the substantive Due Process claims. Additionally, last year, the Federal Circuit held that the Article I Court of Appeals for Veterans Claims (“the Veterans Court”), under the All Writs Act, had the power to order the Veterans Administration to issue the predicate tickets to the Veterans Court if they had been unreasonably delayed. Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir 2017). A Notice of Determination is Not Jurisdictional in Petiti ubstantive Due Process Clai By the same reasoning as in Insinga, itis a violation of the Tax Court's own jurisdiction if a Notice of Determination is considered jurisdictional where, as here, a petition has asserted substantive Due Process claims and the Tax Court has not ordered, whether by motion or sua sponte, the Tax Court to issue a Notice of Determination. The Tax Court violates its own Article Tduty to be a tribunal, and its dismissal is ship money, when it asserts, as it did in the present case, jurisdictional limitation in order to defeat substantive Due Process. The Supreme Court severely dis favors jurisdictional process, and itis banned when substantive Due Process rights are, as in the present petition, asserted. It is clear that process and substantive Due Process are indissolubly united (see Myers v. Commissioner, D.C. Circuit Court of Appeals, No. 18-1003), but also, equally clear that the unity always vindicates, and never defeats, the adjudication of substantive Due Process claims. ‘There Is a Jurisdictional Determination in the Present Case 23Alternatively, where, as here, substantive Due Process rights are asserted in a petition, a Notice of Determination is not a § 6330(a)(1) “determination.” Indeed, the section states that a petitioner may, “within 30 days of a determination under this section, appeal such determination.” The petition in the instant case, was filed within 30 days of the letter, which is a determination for substantive Due Process purposes. The section requires that a determination be made, not that a Notice of Determination be issued. The Notice of Determination is, i n the present case, irrelevant for purposes of jurisdiction, and so the T: Court erred as a matter of law in dismissing the petition. Class Action In addition, the Monk Court held that, despite the lack of Veterans Court rules authorizing class actions, the Veterans Court also had the power to hear class actions. The Tax Court also, under the same principles as in that case, has class action power ‘Therefore, I request that the Court recognize the substantive Due Process rights alleged in this Brief, and remand the case to the Tax Court for proceedings in conformity with those rights, and order the Tax Court to issue a Notice of Determination, and order the Tax Court to certify as a class all petitioners who have alleged substantive Due Process violations and have had their petitions dismissed on jurisdictional grounds for lack of a Notice of Determination. The tax assessed against me is either not Constitutionally assessable, or not Constitutionally assessable ‘against me. VI. DID THE TAX COURT EXERCISE BIAS AGAINST THE ADJUDICATION OF. UBSTANTIVE DUE PROCE RIGHTS, AND AGAINST SUBSTANTIVE DUE PROCESS RIGHTS, IN VIOLATION OF MASTERPIECE CAKESHOP? 24Clearly, the Tax Court has used Section 6330's requirement of a Notice of Determination, as an excuse to exercise forbidden bias, As shown above, the Tax Court had easy avenues to take in order to find jurisdiction. It took none of them, Thus, the only possible reason for the failure of the Court to find jurisdiction, was an unconstitutional bias against the adjudication of substantive Due Process rights and substantive Due Process rights. ‘The exercise of this bias is banned under Masterpiece Cakeshop v. Colorado Civil Rights Commissioner (No 16-111, June 4, 2018). In that case, as in the present case, a substantive Due Process right was asserted. The Court’s mandate is “a neutral decisionmaker who would give full and fair consideration” to assertions of substantive Due Process violations.” Slip op. at 18. In the present case, the Tax Court did not act as a neutral decisionmaker. Indeed, in the present case, the Tax Court levied a clearly unconstitutional fine— which this Court must void—as a punishment because I asserted jurisdiction and substantive Due Process rights—and as @ warning to other taxpayers not to assert jurisdiction with respect to substantive Due Proce: its or substantive Due Process rights. Thus, the Tax Court acted illegally in dismissing the petition. VIL IS COLLECTION DUE PROCESS A SUBSTANTIVE DUE PROCESS RIGHT? Before Lucia, it was unclear what is the substantive Due Process status of Collection Due Process. CDP was subject to all manner of Tax Court rulings which, in effect, invoked discredited ig, simply because the procedure seemed “informal"—therefore the right to that ig, simply Pp procedure could be seen as separate from substantive Due Process. No longer. Lucia is as much about the cht to the process, as it is about who adjudicates as part of the process. There can be no question, after Lucia, that CDP enjoys a level of security higher than minimum scrutiny, and 25that adjudication in the tax context is an unchanging fact of human experience which harmonizes at every point with the individually enforceable right to taxation. Collection Due Process is a substantive Due Process right because notice, which is an indicium of Collection Due Process, is an unchanging fact of human experience under the Barnette test. This is the conclusion from Berkun v. Commissioner, 2018 U. App. LEXIS 13910 (11th Cir, May 25, 2018), in which incarceration is identified as a Barnette unchanging fact of human expetience for notice purposes of Collection Due Process. Under the facts of that case, the NOIL is actual notice. Mannella v. Commissioner, 132 T.C. 196, 200 (2009), rev'd and remanded on other issue, 631 F.3d 115 (3d Cir. 2011), is either distinguishable or invalid. And the notice is of Collection Due Process, including the jurisdiction of the Tax Court. For this reason, when a taxpayer asserts substantive Due Process tights in a petition, the Tax Court has jurisdiction. Notice is not a prelude to jurisdiction—it is jurisdiction; jurisdiction is subject to notice, jurisdiction is not the master of notice. As pointed out in several cases also recognizing that incarceration is a Barnette unchanging fact of human experience, to hold otherwise is forfeiture in violation of Due Process. Dusenbery v. United States, 534 U.S. 161, 164-69 (2002); United States v. McGlory, 202 F.3d 664, 672, 674 (3d Cir. 2000); Weng v. United States, 137 F.3d 709, 714 (2d Cir. 1998). 26June 28, 2018 Office of the Clerk James R. Browning Courthouse ULS, Court of Appeals P.O. Box 193939 San Francisco, CA 94119-3939 Re: Ryskamp v. Commissioner of Internal Revenue, No. 18-17325 To the Court: Pursuant to Rule 28(j) I write to apprise the Court of authority decided after filing my brief. ‘The agency fee in Janus v. American Federal of State, County, and Municipal Employees, 985 U.S. (2018) is a tax, as Justice Kagan notes: itis “levying a tax.” Slip op. at 15. The fee is used by government to impose “tax increases,” “reforms to...tax systems,” “[e]xpand, ..the base of the state sales tax,” and “allow. ..an income tax that is adjusted in accordance with ability to pay.” Id. at 29. [have a right to have the amount assessed, reduced to the extent of the amount of this unconstitutional tax. Janus also holds that the tax assessed in the present case which is not unconstitutional as an agency fee, must meet strict scrutiny. This is in accord with my brief, in which taxation is asserted as an individually enforceable right. ‘The person issuing the letter in the present case is the Janus government. The Hudson notice is the letter. Jd, at 4. The Hudson notice is a “determination.” Id. at 3. Just as in the case of a Notice of Determination under Section 6330 context, workers “may challenge that determination.” Id. at 4. Thus, the letter in the present case is a Notice of Determination and confers jurisdiction on the Tax Court. The holding of Janus is that the scrutiny regime is no longer the Constitutional regime, as asserted in my brief. ‘The Court explicitly rejects the notion that government need only “reasonably conclude” that a tax is needed. Jd, at 11. This is explicit rejection of the notion that only minimum: scrutiny applies to taxation, Janus makes a “federal constitutional issue’ out of basic “employment matters, including working conditions, pay, discipline, promotions, leave, vacations, and terminations.” /d. at 16. It empowers judges “now and in the future, to intervene in economic and regulatory policy.” Id. at 26. It means that the Constitutional regime is no longer about how decisions are made, but rather, about “who should prevail,” and “almost all economic and regulatory policy affects or touches speech.” Id, at 27, 28. John Ryskamp 1677 Arch Street Berkeley, CA 94709 510-848-6898