Raymond D. Berglund

Petitioner,
 
v.                                                                              Docket No. 99-1-91

Wisconsin Department of Revenue

Respondent,
 

TO:  Veronica Falstad,
Attorney For the State of Wisconsin Department of Revenue
125 South Webster Street
Madison, Wisconsin  53708-8933

 Comes now the Petitioner, upon notice and duty pursuant to the Scheduling Order, dated July 9, 1999, of the Tax Appeals Commission, regarding the above noted case and Docket number, offering this response and objection to the respondent’s above noted Motion, dated June 8, 1999.

1.  The petitioner objects to this motion as lacking in good faith presentment to this body, as any "failure" of the petitioner to "allege… judiciable error of law…" is not any indication of the lack of any actual contentions of factual nature by the petitioner or violations of law by the respondent, but is actually further evidence of the continued failure of the respondent to govern its actions by any fair or reasonable behavior conducive to the promotion of the recognized purposes of due process of law as seen by the U.S. Supreme Court:
 
"The central aim of due process doctrine is to assure fair procedure when the government imposes a burden on an individual. The doctrine seeks to prevent arbitrary government, avoid mistaken deprivations, allow persons to know about and respond to charges against them, and promote a sense of the legitimacy of official behavior. (The Oxford Companion to the Supreme Court of the United States/ Edited by K. Hall, p. 236)(emphasis added)

2.  The petitioner makes this claim with support of the fact that the motion of the respondent is brought forward in bad faith applying for support from TA 1.15, 1.31, and 1.39.  The claim of bad faith action by the respondent is evidenced as the respondent failed to make any notification to the petitioner of any of these regulations governing this process, when originally informing the petitioner of his Appeal opportunity before this body, via State’s Exhibit 4.

 The petitioner provides to the Tax Appeals Commission his Exhibit A, "NOTICE OF AMOUNT DUE", the only other printed matter enclosed with the respondents March 8, 1999 "NOTICE OF ACTION …ON PETITION FOR REDETERMINATION…" regarding this case and triggering this appeal.

 Therefore, it is the contention of the petitioner that the respondent did not act in good faith regarding his case at least on March 8th, possibly acted in bad faith in the prior events in the administrative process, and continued to do so on June 8th, by filing the above noted motion, as the respondent failed to provide any prior notification to the petitioner of the applicable form and rules for making an acceptable Appeal pursuant to TA 1.15, 1.31, and 1.39.

 3.  The petitioner objects to the above noted motion for summary judgement on the pleadings by the respondent, as not being provided to this body in good faith, as if the respondent was going to hold the petitioner to rules before this Commission from the outset of the Appeal, it should have acted in good faith by providing to the petitioner the instructions/citation of TA 1.15, and some indication that compliance with the rules of practice and procedure before the circuit courts of the State of Wisconsin were going to be requirements in every step of the appeal and review process before this Commission, as set forth in TA 1.31 and 1.39.
 
 4.  If it is found that the petitioner failed to state a claim for which relief can be granted, it is the petitioner’s contention that is none other than the direct result of yet another in a long line of failures of the respondent to provide any actual disclosure of the specifics of the respondent’s procedures and claims, despite the following requirement of the U.S. Supreme Court in the landmark case of Goldberg v. Kelly, 397 U.S. 254 (1970), which decided on the required and rudimentary components of administrative due process of law:

"In the present context these principles require…timely and adequate notice detailing reasons…, and an effective opportunity to defend by confronting any adverse witnesses and by presenting arguments and evidence… These rights are important in cases...challenged…as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases."
    Goldberg v. Kelly 397 U.S. 254 (1970)

"Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While it is important in the case of documentary evidence, it is more important where the evidence consists of testimony of individuals…"

"We have formalized these protections in the requirements of confrontation and cross-examination"

"This court has been zealous to protect these rights from erosion. It has spoken out…in all types of cases where administrative...actions were under scrutiny."
   Greene v. McElroy, 360 U.S. 474. 496-497 (1959)

 5.  If it is found that the petitioner failed to state a claim for which relief can be granted, it is the petitioner’s contention that is none other than the direct result of yet another failure of the respondent to provide any actual disclosure of any specifics of fact or law, supporting the contentions of the respondent to then provide the petitioner with a clear and certain set of parameters to make a contention of fact or law to fully construct his Appeal before this Commission.

6.  The only statement made by the respondent in support of its determination (see Respondent’s Exhibit 4) on the petition for redetermination for the petitioner to construct his appeal was provided as follows:

"We have not received your completed Wisconsin individual income tax returns for 1996 and 1997 as requested.  Consequently, we are upholding the …tax assessment."
 

This statement and reason is seriously deficient in any factual, legal, or statutory merit to derive a specific legal argument for the petitioner to base an appeal on or find an appealable offense short of denial of due process of law.  This reason for the respondent’s determination is clear evidence that the respondent withheld any comment of any fact or law, or lack thereof, for the petitioner to use in the construction of his appeal.

7.  Petitioner objects to the respondent’s motion for summary judgment as the foundational logic and argument for the upholding of the assessment for failure to provide a return is supported by no statute or regulation being provided, nor can be presented, to prove that a return must be provided as a pre-requisite to the petitioner’s right to administrative due process of law as set forth by the U.S. Supreme Court in Goldberg v. Kelly, 397 U.S. 254 (1970), citing Grannis v. Ordean:

"The fundamental requisite of due process of law is the opportunity to be heard". Grannis v. Ordean, 234 U.S. 385, 394 (1914).
 

8.  The petitioner objects to the respondent’s motion for summary judgement on the pleadings, as the respondent’s determination that is being appealed not only occurred without any legal or statutory foundation supporting its determination, but also in the face of the overwhelming preponderance of evidence presented by the petitioner that proved the respondent’s position to be lacking rational foundation:

"We find nothing in the statutes, the rules of the Board or our decisions that gives any support to the idea that the Commissioner’s determination shown to be without rational foundation and excessive will be enforced unless the taxpayer proves he owes nothing or, if liable at all, shows the correct amount. While decisions of the lower courts may not be harmonious, our attention has not been called to any that persuasively supports the rule for which the Commissioner here contends," Helvering v. Taylor, 293 U.S. 507, 55 S. Ct. 287 p. 514 (1935)

"Once a taxpayer has introduced evidence sufficient to support a finding that the assessment is wrong, Foster prevents the Government from simply resting on the presumption and requires it to come forward with some evidence to support a conclusion that the assessment is correct in spite of the taxpayer’s evidence." Higginbotham v. United States, 556 F.2d 1173, 1176 (4th Cir. 1977)

 as is his duty in bearing or shifting the burden of proof in tax cases:

Once the Government has carried its initial burden of introducing some evidence linking the taxpayer with income producing activity, the burden shifts to the taxpayer to rebut the presumption by establishing by a preponderance of the evidence that the deficiency determination is arbitrary or erroneous.  (Cites omitted)."  Rapp v. Commissioner, 774 F.2d 932, 935 (9th Cir. 1985)
 
 

9.  The petitioner objects to the respondent’s motion for summary judgement as the only facts and legal argument of this case in the administrative process entered into the administrative record were presented by the petitioner.  He thus believes that he has created the required preponderance of evidence that is well grounded in U.S. Supreme Court cases, State laws, and applicable Federal Statutes and Regulations, as presented in his December 28, 1998 Petition for Redetermiantion (Exhibit B).

This mass of law and principles of law support the petitioner’s contention that he had by law earned no gross income under federal law to therefore have earned any taxable income under the State law to then create a filing requirement.

10.  The lack of any gross income under federal law no doubt negatively effects the legal and factual possibility that a federal or state filing requirement could exist to then make the filing of a return to be a requirement of the Commissioner prior to provision of his inalienable right to be his property.

WHEREFORE, the Petitioner moves that the Wisconsin Tax Appeal Commission for an Order denying the above noted motion by the respondent for judgement on the pleadings, or summary judgement, in favor of respondent, due to the complete and consistent lack of good faith behavior throughout the entire administrative process, even to date.

This behavior of the respondent has been inconsistent with fair procedure and court mandated disclosure of prima facie evidence and facts by state executive agencies, for the purposes of promoting a sense of the legitimacy of official behavior, and thus denial of meaningful administrative due process of law, as required by the U.S. Supreme Court in Goldberg v. Kelly, 397 U.S. 254 (1970):

The hearing must be "at a meaningful time and in a meaningful manner."
Armstrong v. Manzo, 380 U.S. 545, 552(1965) and is best described as a legal ambush.
 

The above is true correct and complete to the best of my knowledge information and belief.
 

______________________
Raymond D. Berglund