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Number xx-XXXXX

In the
United States Court of Appeals
For the XXXXX Circuit


PETITIONER


Petitioner-Appellant


-v.-


Commissioner of Internal Revenue



Respondent-Appellee.



On appeal from the United States Tax Court
Docket Number XXXX-XX



REPLY BRIEF FOR PETITIONER-APPELLANT

PETITIONER
ADDRESS
PHONE
[2]

In the United States Court of Appeals
For the Fifth Circuit

Petitioner Name )
Petitioner Appellant )
) Docket No. XX-xxxxx
v. )
) Petitioners Reply Brief
Commissioner of Internal Revenue )
Respondent Appellee )
REPLY BRIEF FOR PETITIONER
INTRODUCTION
This brief is in response to Respondents served DATE. The case concerns the
Commissioners decision to sustain a proposed levy to collect a 6702(a) frivolous
return penalty. Respondent attempts on brief to meet the burden of proof that his
Appeals Office should have met during the hearing. Evidence and Respondents
admissions in the administrative record, however, indicate:
1.) that he never acknowledged, let alone met, his burden to prove the elements
of a 6702 penalty,
2.) that the subject return contained no specified frivolous positions,
3.) that R failed to prove the foundational fact element necessary to show that I
am a person subject to the penalty, and
4.) that the assessment was not just procedurally irregular, but completely bogus,
having been made outside the statutory limit for assessments.
[3]

The Court further ordered a $1,000 sanction against me for having raised an
unspecified frivolous argument in an ex parte letter and for the Courts
unexplained, and indeed, inexplicable accusation that a statement of fact is a
frivolous argument.
The Tax Court should be reversed on the liability determination and on the
penalty determination.
TABLE OF CONTENTS

REPLY BRIEF FOR PETITIONER .................................................................. 2
INTRODUCTION .............................................................................................. 2
STATEMENT OF THE ISSUES ....................................................................... 6
STATEMENT OF THE CASE .......................................................................... 7
RELEVANT FACTS ......................................................................................... 8
REPLY TO RESPONDENTS ARGUMENT ................................................... 9
A. The Assessment Was Time Barred by Statute ........................................ 9
B. Petitioner Is Not Among Those Subject to 6702(a) Penalty ...............14
CONCLUSION .............................................................................................21
CERTIFICATE OF SERVICE .....................................................................22


[4]

TABLE OF AUTHORITIES
Where not otherwise specified, references are to Title 26 of the United States Code of 1986
Statutes
6373 .......................................................................................................................... 6
6501 ......................................................................................................... 8, 9, 13, 14
6671(a) ........................................................................................................ 8, 11, 14
6671(b) ...................................................................................................... 15, 18, 19
6673 ........................................................................................................................21
6700 ........................................................................................................................13
6701 ........................................................................................................................13
6702(a) ........................................................................................................... passim
6703(a) ..................................................................................................................... 6
7701(a)(1) ........................................................................................................ 15, 18
7701(c) ...................................................................................................................16
Pub. L. 109432, 120 Stat. 2960 (2006) ................................................................17
Pub. L. 97248, title III, 326(a), Sept. 3, 1982 .....................................................17
Cases
Arizona Grocery Co. v. Atchison, T. & S.F. Ry. Co.,
284 U.S. 370, 52 S.Ct. 183 (1932) ...........................................................................13
Astoria Federal Savings & Loan Assn v. Solimino, 501 U.S. 104, 112 (1991) .....17
Badaracco v. Commissioner, 464 U.S. 386, 104 S. Ct. 756, 78 L. Ed. 2d 549 .......10
Bailey v. United States, 516 U.S. 137, 146 (1995) ..................................................17
Barnett v. Internal Revenue Service, 988 F.2d 1449 (5th Cir.1993), ......................14
Beard v. Commissioner, 82 TC 766, at 784 (1984) .......................................... 10, 11
Colautti v. Franklin, 439 U. S. at 392-393, n. 10 ....................................................15
Colton, 902 F.2d 1462. ............................................................................................19
[5]

Commonwealth National Bank of Dallas v. United States,
665 F.2d 743 (5
th
Cir. 1982) .....................................................................................19
Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992) ........................18
Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476 (1965) .............................................13
Dixon v. Commissioner, 316 F.3d 1041 (9
th
Cir. 2003) ...........................................21
Florsheim Bros. Dry Goods Co., Ltd. v. United States,
280 U. S. 453, 280 U. S. 462 ...................................................................................10
Fox v. Standard Oil Co. of N. J., 294 U. S. 87,
95-96, 55 S.Ct. 333, 336 (1935) ...............................................................................15
Helvering v. Morgan's Inc. 239 U.S. 121,
79 L.Ed. 232, 55 S.Ct. 60, 125 n.1 (1934) ...............................................................16
Houston v. Commissioner, 38 TC 486, 489,(1962) .................................................10
Kizzier v. United States, 598 F.2d 1128, (8
th
Cir. 1979) ..........................................19
McDermitt v. United States, 954 F.2d 1245, (6
th
Cir. 1992)....................................19
Meese v. Keene, 481 U. S. 465, 484-485 (1987) .....................................................15
Moser v. United States, 341 U.S. 41, 71 S.Ct. 553 (1951); .....................................13
Murphy v. United States, 45 F.3d 520 (1
st
Cir. 1995) ..............................................19
National Paper Products Co. v. Helvering, 293 U.S. 183 (1934) ...........................10
National Refining Co. v. Commissioner, 1 B. T. A. 236 (1924) .............................10
National Refining Co. v. Commissioner, 1 B. T. A. 236 (1924). ............................10
Pacific National Insurance Co. v. United States, 422 F.2d 26 (9
th
Cir. 1970) . 19, 20
Plett v. United States, 185 F.3d 216, 84 A.F.T.R.2d 99 (4
th
Cir. 1999) ..................19
Quattrone Accountants, Inc. v. I.R.S., 895 F.2d 921 (3
rd
Cir. 1990) ......................19
Radalis v. U.S.A., & I.R.S., 169 Fed. Appx. 390 .....................................................19
Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257 (1959), ................................................13
Robert W. Monday v. United States, 421 F.2d 1210, (7
th
Cir. 1970) .......................19
Roth v. United States, 779 F.2d 1567, (11
th
Cir. 1986) ............................................19
[6]

Russello v. United States, 464 U.S. 16 23, 78 L Ed 2d 17, 104 S. Ct. 296 (1983) ..18
Sisemore, 797 F.2d. 268 ...........................................................................................19
Slodov v. U.S., 436 U.S. 238, 249 (1978) ................................................................16
Smith v. United States, 555 F.3d 1158, (10
th
Cir. 2009) ..........................................19
Sprietsma v. Mercury Marine, 537 U.S. 51, 63 (2003 ) ..........................................17
Stenberg v. Carhart, 530 U.S. 914, 942, 120 S.Ct. 2597, 2615 (2000)...................15
Stone v. INS, 514 U.S. 386, 397 (1995). ..................................................................18
United States v. Aguilar, 21 F.3d 1475, 1480 (9th Cir. 1994) .................................18
United States v. Laub, 385 U.S. 475, 487, 87 S.Ct. 574 (1967). .............................13
United States v. McCombs, 30 F.3d 310 (2
nd
Cir. 1994) .........................................19
United States v. Wong Kim Bo, 472 F.2d 720, 722 (CA5 1972) .............................18
Western Union Telegraph Co. v. Lenroot, 323 U. S. 490, 502 (1945) ....................15
White v. United States, 372 F.2d 513, 517, 178 Ct. Cl. 765 (1967). .......................20
Wilson v. United States, 250 F.2d 312, 316 (9th Cir. 1958) ....................................20
Wnuck v. Commissioner, 136 T.C. No. 24, slip op. (2011) .....................................20
Zellerbach Paper Co. v. Helvering, 292 U.S. 172, 180 (1934) ...............................10
Zimmerman v. STATE, DEPT. OF JUSTICE, 170 F. 3d 1169 (9th Cir. 1999) .......19
STATEMENT OF THE ISSUES
Contrary to Respondents allegations in his brief, the only issues before this
Court are the following, which I raised in my opening brief:
1. Whether the assessment was made outside the statute of limitations.
2. Whether I am subject to the alleged penalty.
3. Whether the Commissioners Appeals Office met his burden of proof
concerning the application of the 6702 (a) penalty.
[7]

4. Whether a 6373 penalty of $1,000 assessed against me by the Tax Court is
lawful and properly supported.
STATEMENT OF THE CASE
The case has been described with in detail in the opening briefs. At the heart of
our controversy is Respondents consistent refusal to acknowledge his burden of
proof under 6703(a),
1
and his efforts, even after admitting that he has the burden,
to avoid presenting evidence and to insist that I prove my return is not frivolous.
Respondent devotes most of his brief to a confused effort to meet a burden that he
was required to meet at the Collections Due Process hearing. His discussion of
what he regards as my underlying position
2
is entirely irrelevant. The issue of
whether my earnings are taxable was not before the Tax Court and is not before
this Court. Respondents efforts to address that issue are a waste of time. Just as his
efforts to demonstrate the factual elements of the penalty now are too little too late.
R cannot show where in the record those elements were considered and determined

1
Sec. 6703. Rules applicable to penalties under sections 6700, 6701, and 6702
TITLE 26, Subtitle F, CHAPTER 68, Subchapter B, PART I, Sec. 6703.
STATUTE
(a) Burden of proof
In any proceeding involving the issue of whether or not any person is liable for a penalty
under section 6700, 6701, or 6702, the burden of proof with respect to such issue shall be on
the Secretary. (Emphasis added)
2
Rs Brief, pg. 15, line 1. Taxpayers underlying position is that she is not obliged to pay tax on
her earnings.
[8]

as he was required to do to sustain his levy. His efforts to meet his burden now are
meaningless speculation as to how the determination was made.
This is a collections action. R must already have proven the liability and made a
procedurally proper assessment to justify the levy. The issue is whether R met his
burden at the CDP hearing to prove the penalty liability. He never even
acknowledged such a burden and made no effort to meet it. He failed to prove I am
subject to the penalty. He failed to prove that the assessment was properly made.
He failed to prove the amended return at issue met the elements for a frivolous
penalty as they are described in 6702(a). Respondent has the burden to prove
penalty liability in any proceeding.
3
Proving it now doesnt justify collection
actions that have already begun.
RELEVANT FACTS
Respondent failed to object to any of the Statements of Relevant Fact in my
opening brief. He thus concedes them. In examining the rambling mixture of facts,
legal conclusions, and speculation in Rs Statement of Facts
4
it appears as
though he agrees to the essential fact elements underlying my case as they were
stated in my opening brief.


3
6671(a).
4
Rs Brief, pg. 4 - 14
[9]

REPLY TO RESPONDENTS ARGUMENT
A. The Assessment Was Time Barred by Statute
The facts are not in dispute concerning the date of my valid original 1040 filing
for 2004 and the date of the alleged assessment. The assessment date of
10/23/2009 is well outside the three year limit specified at 6501. The
Commissioner has not alleged that the statute has been extended or waived in any
way.
5
Pursuant to 6671(a), penalties under 6702(a) are assessed and collected in
the same manner as taxes.
6
The offending document is associated with my original
1040 return throughout the record.
7

After a long and generally accurate description of the statutory framework for
CDP hearings, Respondent admits that the Appeals Office must obtain
verification from the Secretary that the requirements of any applicable law or
administrative procedures have been met.
8
I agree and have been trying to hold R
to that requirement throughout this process. R shows that he understands the
importance of a proper assessment when he states:

5
The statute may be extended by a number of circumstances described in 6501(c), (d), and (e),
none of which are alleged to exist in this case.
6
6671(a) Penalty assessed as tax
The penalties and liabilities provided by this subchapter shall be paid upon notice and demand by
the Secretary, and shall be assessed and collected in the same manner as taxes. Except as
otherwise provided, any reference in this title to tax imposed by this title shall be
deemed also to refer to the penalties and liabilities provided by this subchapter. (Emphasis
added)
7
USTCE, Exhibit 1-J pg. 1 Tax Type/Form Number; Exhibit 13-J, all pages, Tax Year;
8
Rs Brief, pg. 17, 2
nd
paragraph.
[10]

This inquiry includes a determination that taxes have been properly
assessed, since its the assessment that gives rise to the authority to
collect the levy.
9
(Emphasis added)

One of the foundational requirements of applicable law for a proper
assessment is in the limitation statute at 6501. After a long irrelevant effort to
demonstrate that the subject return was indeed frivolous, an issue not before
this court, Respondent addresses the statute of limitations (SOL) starting on
page 15. He incorrectly asserts that the SOL does not relate back to the filing of
the original return. Respondent offered no citation to authority for this
statement, which directly contradicts rulings in Zellerbach,
10
Florsheim
11
,
Houston,
12
Beard,
13
Badaracco
14
and many others. The Supreme Court stated
in Badaracco,
It thus has been held consistently that the filing of an amended return in
a nonfraudulent situation does not serve to extend the period within which
the Commissioner may assess a deficiency.(Badaracco v. CIR)
15


9
Rs Brief, pg. 17, 2
nd
paragraph., citing Roberts v. Commissioner, 329 F.3d 1224, 1227 (11
th

Cir. 2003)
10
Zellerbach Paper Co. v. Helvering, 292 U.S. 172, 180 (1934).
11
Florsheim Bros. Dry Goods Co., Ltd. v. United States, 280 U. S. 453, 280 U. S. 462
12
Houston v. Commissioner, 38 TC 486, 489,(1962)
13
Beard v. Commissioner, 82 TC 766, at 784 (1984)
14
Badaracco v. Commissioner, 464 US 386, 104 S. Ct. 756, 78 L. Ed. 2d 549.
15
Badaracco v. Commissioner, 464 US 386, 394 fn. 8, 104 S. Ct. 756, 78 L. Ed. 2d 549: citing as
examples, Zellerbach Paper Co. v. Helvering, 293 U.S. 172 (1934); National Paper Products
Co. v. Helvering, 293 U.S. 183 (1934); National Refining Co. v. Commissioner, 1 B. T. A. 236
(1924). Please note also that in referring to a tax deficiency, we are also referring to a
penalty deficiency. Pursuant to 6671(a) the words tax and penalty are interchangeable
for assessment purposes.
[11]


Respondent rejoins the SOL argument on pg. 27 of his brief where he does not
claim the assessment was within the time limit, or that any extension of the time
limit occurred, but instead makes three separate, and equally meritless arguments.
First R argues that the statute of limitations simply doesnt apply to 6702
penalties,
16
second, that filing an amended return starts its own three year time
limit,
17
and finally, that 6501 applies to tax payable by return or stamp,
18
and
would somehow not apply to a penalty against my amended return.
The second argument is long settled. Section 6671(a) tells us that penalties are
assessed and collected in the same manner as taxes.
19
In the landmark Beard case,
the Court agreed, citing Zellerbach:
The Court in Zellerbach held that an original return, despite its
inaccuracy, was a "return" for limitations purposes, so that the filing of an
amended return did not start a new period of limitations running.
(Emphasis added) (Beard v. CIR)
20


There is no dispute that my original return was valid. My amended return did
not start a new limitation period.

16
Rs Brief, pg. 27, last paragraph, Taxpayer erroneously assumes that a 6702 penalty must be
assessed within the three-year statute of limitations set by 6501(a).
17
Rs Brief, pg. 29: In any event, if 6501(a) were applicable, the three-year period would
begin to run when the frivolous return was filed.
18
Rs Brief, pg. 28. the statute of limitations set by 6501(a), which taxpayer invokes,
applies only to a tax payable by return or stamp.
19
6671(a)
20
Beard v. Commissioner, 82 TC 766, at 784 (1984).
[12]

As to whether 6501 applies to 6702 penalties, Respondent argues that it does
not, stating: There is no statute of limitation on an assessment of a frivolous-
return penalty under 6702.
21
Respondent offers no reference to any authority for
this statement. The exceptions to the limits in 6501 are explicit, not at issue here,
and do not specify an exemption for 6702. Respondent is, or should be, aware that
the statute does indeed apply to 6702. The Tax Court in Callahan v. CIR ruled,
based on undenied allegations in Rs answer to the petition, that:
petitioners are deemed to have admitted that the frivolous return
penalties for 2003 were timely assessed before the expiration of
the 3-year limit for assessment applicable under section
6501(a).
22
(Emphasis added)

The Tax Court could hardly have been more explicit.
Respondent is also presumed to be aware of and to conduct himself according to
the policies and procedures in the Internal Revenue Manual. The Internal Revenue
Manual says this about 6702 penalties and the 6501 limits:
4. Penalties
As a general rule, the statute of limitations to assess IRC Section
6702 penalty begins with a valid return filing;
23


The Internal Revenue Manual itself specifies its significance for
Respondents organization of the information it contains:

21
Rs Brief, pg. 28
22
Callahan v. Commissioner, 130 T.C. 3, 5 (2008)
23
IRM 4.10.12.4.9 (11-27-2009)
[13]

The IRM is the primary, official source of instructions to employees
relating to the organization, administration and operation of the IRS.
The IRM contains the directions employees need to carry out their
responsibilities in administering the laws or other agency obligations.
It ensures that employees have access to current procedures.

The IRM is used to fulfill the IRS' legal requirements as a Federal
agency to document, publish, and maintain records of policies,
authorities, procedures, and organizational operations.
24


Information such as that in the IRM is generally considered a defense
against contrary assertions by the government when cited as authority in
controversies between citizens and the government.
25

The IRM states as a matter of procedure and law, and the Tax Court
agreed in Callahan supra, that 6702 penalties are subject to the statutory
limits at 6501. But even if the IRM didnt so state, Respondent has offered
no citation to any authority to show an exemption to 6501 applies to 6702.
Respondent further argues that because penalties under 6700 and 6701
have been found not to be return based penalties, and thus not subject to
the SOL, then 6702 is likewise not subject to 6501. This is his last
desperate attempt to exempt the penalty from the limitation statute. He does
so this time by arguing that the penalty he refers to as a frivolous-return

24
IRM 1.11.6.2 (05-07-2010) Using the IRM
25
See e.g. Arizona Grocery Co. v. Atchison, T. & S.F. Ry. Co., 284 U.S. 370, 52 S.Ct. 183
(1932); Moser v. United States, 341 U.S. 41, 71 S.Ct. 553 (1951); Raley v. Ohio, 360 U.S. 423,
79 S.Ct. 1257 (1959), Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476 (1965), United States v.
Laub, 385 U.S. 475, 487, 87 S.Ct. 574 (1967).
[14]

penalty in the previous sentence
26
applies only to a tax payable by return
or by stamp. If my amended return had shown a tax due, there is no
question that it would have been payable with the return. Respondents
administrative record identifies the penalty as a return penalty again and
again.
27
The notion that a frivolous return penalty levied against a Form
1040X return that was filed to amend a Form 1040 return is not a return base
penalty is flawless nonsense. No case cited by Respondent in support of this
loopy notion even mentions 6702.
Section 6501 is a statutory prohibition that applies to Rs authority to assess
taxes, and, through 6671(a), return-based penalties. Its not a suggestion that can
be disregarded if R can sneak it past an uninformed citizen. The prohibition applies
to 6702 by Respondents own admission in the IRM. Respondent has openly and
knowingly violated that prohibition. This Court cannot lawfully sustain his actions.
B. Petitioner Is Not Among Those Subject to 6702(a) Penalty
The I.R.C. specifies those subject to penalty under 6702 at 6671(b).
28
The
status of a 6671(b) person is a matter of fact, not a question of law.

29
Contrary to

26
Rs Brief, pg. 28, line 5-9.
27
USTCE, Exhibit 1-J pg. 1 Tax Type/Form: Civil Penalty/Form 1040; Ex. 2-J; Ex. 3-J; Ex.
13-J, all pages, Tax Year, pg. 3 ** INFORMATION FROM THE RETURN OR AS
ADJUSTED ** (Emphasis added).
28
Section 6671(b) provides as follows: Person defined.--The term "person", as used in this
subchapter, includes an officer or employee of a corporation, or a member or employee of a
[15]

Rs allegation,
30
my statement in the Pretrial Memo
31
concerning my status is a
statement of fact, not a legal argument.
Respondent doesnt argue that I fit the definition of person at 6671(b). Instead
he argues a point of statutory construction. Respondent claims that the 6671(b)
definition, because it uses the verb includes instead of means, includes not
only the types of persons specified in the definition but all possible persons
embraced by the common English definition and the title-wide definition at
7701(a)(1). Respondent states, without any reference to authority,
Section 6671(b) does not define person to mean exclusively
something other than its ordinary meaning; it simply provides that the
term, in addition to its regular meaning, also includes officers,
employees, or members of entities. (Emphasis in original)

Such an interpretation is contrary to every relevant rule of statutory construction.
In my brief I referenced controlling authorities that conclusively establish that
statutory definitions of words replace common English definitions.
32
Respondent

partnership, who as such officer, employee, or member is under a duty to perform the act in
respect of which the violation occurs.
29
Barnett v. Internal Revenue Service, 988 F.2d 1449 (5th Cir.1993), In this case a jury was
charged with determining whether the plaintiff was the responsible person under 6671(b).
Juries do not decide questions of law in modern American courtrooms.
30
Rs Brief, pg. 31 bottom 32 top. Referring to that statement, this is not a statement of fact
but, rather, it is essentially an argument that taxpayer is not required to perform any act
related to the Internal Revenue Code, Respondent not only confuses a statement of fact
with an argument but sets up an argument that I never made.
31
Dkt. No. 0021, Transcript of Recall and Order,pg.4, ln. 25 - pg. 5, lns. 4.
32
Petitioners Opening Brief, pg. 27, fn. 44, citing the following controlling cases: Stenberg v.
Carhart, 530 U.S. 914, 942, 120 S.Ct. 2597, 2615 (2000); Meese v. Keene, 481 U.S. 465, 484-
[16]

cited no authority at all to support his argument that statutory definitions expand
common meanings without limit.
Supreme Court in Slodov v. U.S. stated that the definition at 6671(b) creates a
class of individuals.
33
Respondent referenced no authority for his argument that
the definition excludes no one.
The Supreme Court in Helvering v. Morgans, Inc. (where R prevailed arguing
the opposite of what he is arguing here, i.e., that includes is the same as
means)
34
clearly told us how includes is to be interpreted in statutory
definitions:
the verb includes imports a general class, some of whose
particular instances are those specified in the definition.
35


Section 7701(c) reflects this interpretation
36
but not as clearly as the regulation
at 27 CFR 72.11 which states:

485 (1987); Colautti v. Franklin, 439 U.S. at 392-393, n. 10; Western Union Telegraph Co. v.
Lenroot, 323 U.S. 490, 502 (1945); Fox v. Standard Oil Co. of N. J., 294 U. S. 87, 95-96, 55
S.Ct. 333, 336 (1935); see original footnote for supporting quotations from these cases.
33
Slodov v. U.S., 436 U.S. 238, 249, 98 S.Ct. 1778, (1978)
34
Helvering v. Morgan's Inc. 239 U.S. 121, 79 L.Ed. 232, 55 S.Ct. 60, 125 n.1 (1934): It may
be admitted that the term "includes" may sometimes be taken as synonymous with "means,"
and that the subsection may be taken to require, as the Government contends, that a fractional
part of a normal taxable year of twelve months for which a return is made shall be treated, for
all purposes, as a separate taxable year. (Emphasis added)
35
Helvering v. Morgan's Inc. 239 U.S. 121, 79 L.Ed. 232, 55 S.Ct. 60, 125 n.1 (1934).
36
7701(c) Includes and including
The terms "includes" and "including" when used in a definition contained in this title shall not
be deemed to exclude other things otherwise within the meaning of the term defined.
[17]

Meaning of Terms: The terms "includes and including" do not
exclude things not enumerated which are in the same general class.
27 CFR 72.11 (Emphasis added)

Respondent proposes that the 6671(b) definition is essentially meaningless, that
it excludes no one, that it is simply a considerate reminder from Congress to be
sure to include people involved with businesses who are responsible for paying
the companys taxes. R suggests that Congress here is like Mom reminding us to
wear our mittens, but not really ordering us to. Laws are not helpful suggestions.
Such an interpretation would render the 6671(b) definition mere surplusage.
It is a settled principle of statutory construction that statutes are to be construed so
as to avoid rendering superfluous any statutory language.
37
If 6671(b) excludes
no one, it is entirely superfluous.
A closely related principle of statutory construction applies to statutory
amendments. In 2006, when the frivolous return penalty increased from $500 to
$5,000, Congress also changed the term individual
38
in 6702 to the term
person.
39
We may presume that Congress intended to make that specific change:

37
Astoria Federal Savings & Loan Assn v. Solimino, 501 U.S. 104, 112 (1991); Sprietsma v.
Mercury Marine, 537 U.S. 51, 63 (2003 )(interpreting word law broadly could render word
regulation superfluous in preemption clause applicable to a state law or regulation). See
also Bailey v. United States, 516 U.S. 137, 146 (1995) (we assume that Congress used two
terms because it intended each term to have a particular, non-superfluous meaning) (rejecting
interpretation that would have made uses and carries redundant in statute penalizing using
or carrying a firearm in commission of offense).
38
Pub. L. 97248, title III, 326(a), Sept. 3, 1982:
6702. Frivolous income tax return
[18]

When Congress acts to amend a statute, we presume it intends its
amendment to have real and substantial effect.
40


We may also presume that Congress was aware

of the differences between a
7701(a)(1) person and the class of persons defined at 6671(b)
41
who are
subject to Subchapter B
42
penalties.
43

[W]here Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion. (Emphasis added)
44



(a) Civil penalty.--If--
(1) any individual files what purports to be a return of the tax imposed by subtitle A but
which- (Emphasis Added)
39
Pub. L. 109432, div. A, title IV, 407(a), Dec. 20, 2006, 120 Stat. 2960:
6702. Frivolous tax submissions
(a) Civil penalty for frivolous tax returns.--A person shall pay a penalty of $5,000 if--
(Emphasis Added)
40
Stone v. INS, 514 U.S. 386, 397 (1995).
41
Russello v. United States, 464 U.S. 16 23, 78 L Ed 2d 17, 104 S. Ct. 296 (1983) (Quoting
United States v. Wong Kim Bo, 472 F.2d 720, 722 (5
th
Cir. 1972). [W]here Congress includes
particular language in one section of a statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and purposely in the disparate
inclusion or exclusion. (Emphasis added)
42
Any reference in this brief to Subchapter B means: Title 26, Subtitle F, Chapter 68,
Subchapter B, the subchapter to which 6671 by its own clear language applies, and in which
6702 is located.
43
Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253, 112 S. Ct. 1146, 1149 (1992) We
have stated time and again that courts must presume that a legislature says in a statute what it
means and means in a statute what it says there.
44
Russello v. United States, 464 U.S. 16 23, 78 L Ed 2d 17, 104 S. Ct. 296 (1983) (Quoting
United States v. Wong Kim Bo, 472 F.2d 720, 722 (5
th
Cir. 1972).
[19]

In determining legislative intent we look first to the language of the statute.
45

It appears from the cases R cited, Radilis, Sisemore, and Colton,
46
that he is
either unaware of, or doesnt want to talk about, the change that Congress made to
the law in 2006. Prior to 2006, this issue did not exist. Individuals were subject
to the 6702 penalty. But as the law reads now, only 6671(b) persons are so
subject.
47
Congress changed the law. Respondent and the Tax Court are bound by
the language of the law as Congress wrote it, not as they wish it were written. Only
by ignoring or hopelessly twisting settled principles of statutory construction can
Respondent expand without limit definitions that use the verb includes.
An overwhelming number of controlling cases, from Supreme Court
48
and
Appeals Courts in every circuit,
49
agree that the statutory definition in 6671(b)

45
United States v. Aguilar, 21 F.3d 1475, 1480 (9th Cir. 1994), aff'd in part, rev'd in part on
other grounds,115 S.Ct. 2357 (1995): The primary indication of [Congress'] intent is the
language of the statute.
46
Radalis v. U.S.A., & I.R.S., 169 Fed. Appx. 390; Sisemore, 797 F.2d. 268; and Colton, 902
F.2d 1462. These cases concerned penalties levied before the law was changed, and none of
them addresses the issue of whether the subject of the penalty was a 6671(b) person.
47
Zimmerman v. STATE, DEPT. OF JUSTICE, 170 F. 3d 1169 (9th Cir. 1999), citing Chevron
U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 867 n. 9, 104 S.Ct. 2778 (1984)
Using our traditional tools of statutory construction,, [w]hen interpreting a statute, [we]
look first to the words that Congress used. (internal quotes unpaired: ).
48
Slodov, supra, Helvering, supra.
49
Murphy v. United States, 45 F.3d 520 (1
st
Cir. 1995); United States v. McCombs, 30 F.3d 310
(2
nd
Cir. 1994); Quattrone Accountants, Inc. v. I.R.S., 895 F.2d 921 (3
rd
Cir. 1990); Plett v.
United States, 185 F.3d 216, 84 A.F.T.R.2d 99 (4
th
Cir. 1999); Commonwealth National Bank
of Dallas v. United States, 665 F.2d 743 (5
th
Cir. 1982); McDermitt v. United States, 954 F.2d
1245, (6
th
Cir. 1992); Robert W. Monday v. United States, 421 F.2d 1210, (7
th
Cir. 1970);
Kizzier v. United States, 598 F.2d 1128, (8
th
Cir. 1979); Pacific National Insurance Co. v.
[20]

limits the application of Subchapter B penalties to the specific class of persons
described in that section. This Court and Respondent are bound to follow Supreme
Court precedent and that of the Appeals Court in the 5
th
Circuit in this case.
50

Those courts have found that members of the class created by 6671(b) must
have a relationship with a business entity, AND a duty with respect to the
violation that occurred.
51
I have neither. Respondent produced no evidence that I
am in the class of persons there defined. The notion that includes in a statutory
definition does not change the meaning of the defined word is legal nonsense,
unsupported by any authority save the self-serving dissembling
52
of the ethically
compromised and heavily biased Tax Court.
53


United States, 422 F.2d 26 (9
th
Cir. 1970); Smith v. United States, 555 F.3d 1158, (10
th
Cir.
2009); Roth v. United States, 779 F.2d 1567, (11
th
Cir. 1986); Godfrey v. United States, 748
F.2d 1568, (Fed. Cir. 1984).
50
IRM 4.10.7.2.9.8 (01-01-2006)
The Internal Revenue Service must follow Supreme Court decisions. For examiners, Supreme
Court decisions have the same weight as the Code.
51
Pacific National Insurance Company v. United States, 422 F.2d at 30-31, citing Wilson v.
United States, 250 F.2d 312, 316 (9th Cir. 1958), and referencing White v. United States, 372
F.2d 513, 517, 178 Ct. Cl. 765 (1967). But the definition of "persons" [in IRC 6671] does
not require that they be formally vested with the office or employed in the position normally
charged with this function; the definition simply "includes" such persons. Indeed, the language
itself does not require that they be officers or employees of the corporation at all, so long as
they are in fact responsible for controlling corporate disbursements.... [I]t reaches those
who have "the final word as to what bills should or should not be paid, and
when.(Emphasis added)
52
See e.g. Wnuck v. Commissioner, 136 T.C. No. 24, slip op. (2011), wherein the Tax Court
glibly misinterprets the plain language of the learned and honorable men who sat on the
Supreme Courts for the Helvering v. Morgans and Slodov decisions. The Tax Court works the
language like a hustler working a pea and three cups. In Wnuck the Court misquotes the law,
[21]

CONCLUSION
The IRS is attempting to collect a penalty from me that was time barred from the
start. The IRS failed to meet its burden of proof for the liability when it was
required to meet it. The Tax Court failed to meet its burden of production in
sanctioning me under 6673. The Tax Court left all of us guessing as to the facts
and law it relied on in its decision.
I urge this Honorable Court to remand the case for proper consideration of the
statute of limitations, my eligibility for the penalty, Respondents burden of proof,
and the unsupported additional penalty imposed by the Court. Or make such order
as the Honorable Court finds consistent with the law and justice.





Respectfully submitted this XX of XXXX, 20XX.


___________________________
Appellant/Petitioner without representation
ADDRESS AND PHONE


makes athletic leaps to false conclusions, indulges in serial logical fallacies, and resorts to
judiciously reserved, but none the less gleeful name calling. We can expect to see many
citations to this and similar cases by Respondent in the future. I despair for the future of the
rule of law.
53
See e.g. Dixon v. Commissioner, 316 F.3d 1041 (9
th
Cir. 2003) wherein the Tax Court actively
colluded with Respondents fraud on the court and subsequent cover-up.
[22]

CERTIFICATE OF SERVICE

I, Petitioner Name, hereby certify that on, DATE I sent a copy of Appellants
Reply Brief for Docket No. XX-xxxxx to the Clerk of U.S. Court of Appeals
postage paid via U.S. mail, at the following address:


Clerk
U.S. Court of Appeals
For the Circuit

And served a copy of the same document on Appellee counsel by postage paid
mail at the following address:

U.S. Department of Justice
Attorney
Appellate Section
Internal Revenue Service
P.O. Box 502
Washington, DC 20044


_____________________________________
Appellant without representation



DATE

[23]

CERTIFICATE OF COMPLIANCE
with Type-Volume Limitation, Typeface Requirements, and Type Style
Requirements

1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because the brief contains XXXX words, excluding the parts of
the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) because the brief was prepared in a proportionally spaced typeface,
14-point Times New Roman, composed in Microsoft Word 2010.



____________________________________
APPELLANT NAME appellant without representation
DATE