boardman vs irs: religious freedom and war tax resistance

7/30/2019 Boardman vs IRS: religious freedom and war tax resistance

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Docket No. 13-15022

In the

UNITED STATES COURT OF APPEALS

for the

NINTH CIRCUIT

ELIZABETH BOARDMAN,

Plaintiff-Appellant,v.

COMMISSIONER OF INTERNAL REVENUE,

Defendant-Appellee.

Appeal from a Decision of the United States District Courtfor the Eastern District of California

No. 2:12-cv-00639-MCE-GGHChief Judge Morrison C. England, Jr.

APPELLANTS OPENING BRIEF

Robert L. Kovsky, Esq.P. O. Box 240Oakland, CA 94604Telephone: (510) 482-4897

Attorney for Appellant

Elizabeth Boardman

!ase: 13-15022 05/08/2013 ID: 8621217 DktEntry: 9-1 Page: 1 of 87


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TABLE OF CONTENTS

page

JURISDICTION ... 1

STATEMENT OF ISSUES FOR REVIEW 2

STATEMENT OF THE CASE 3

STATEMENT OF FACTS AND PROCEEDINGS BELOW ... 4

A. General Statement of Plaintiffs Claims as a Quaker ...and Practitioner of War Tax Resistance.

5

B. Facts Supporting Claim for Protection of Plaintiffs Free .

Exercise of Religion.

7

1. The IRS publishes statements that religious practices .of war tax resistance are frivolous and implies thatsuch practices are targeted for special handling.

7

2. Bureaucratic suppression appears to be directed ......by the IRS at plaintiffs religious practice andat such religious practices generally.

9

C. Additional Facts Supporting Claim for Accommodation of .

Plaintiffs Practice Pursuant to the Religious FreedomRestoration Act of 1993.

11

1. Quaker war tax resistance has a religious character rooted in tradition.

11

2. Pacifists and pacifist religious practices have .traditionally been accorded respect and partialaccommodation by Congress.

14

3. The IRS imposes substantial burdens on plaintiffs .....religious practice when measured against protectionsfrom frivolous filing penalties in the 1982 version of26 U.S.C. 6702.

16

D. Facts Supporting Requests for Injunctive Relief. .. 17

E. Defendants Motion to Dismiss the Action in District ...Court; Order of Dismissal and Judgment.

17



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SUMMARY OF ARGUMENT page

18

LEGAL ARGUMENT

I. The Free Exercise Clause of the First Amendment Prohibits ..the IRS from Labeling a Religious Practice as Frivolous,Discriminating Against Its Practitioners or Targeting It forSuppression.

22

A. A legal standard of strict scrutiny applies to statements ....and actions of the IRS that are hostile to religion or thattarget religious practitioners for adverse treatment.

22

B. A legal standard of strict scrutiny applies to discretionary decisions by the IRS that potentially discriminate againstreligion, religious practitioners or particular religious sects.

26

C. Statements and actions of the IRS alleged herein do not ..survive strict scrutiny.

29

II. The IRS Appears to Be Violating Constraints on Its Discretion in ..Classification and Handling of Tax Resisters.

33

A. Legal standard for statutory construction. . 33

B. Prior to 1982, individual practitioners of Quaker war tax .resistance were provided with a practical accommodation.

34

C. The Tax Equity and Fiscal Responsibility Act of 1982 .(TEFRA) included a de facto safe harbor that protects taxresisters who file correct returns from added punishments.

36

D. The IRS Restructuring and Reform Act of 1998 (RRA) prohibits the IRS from using an Illegal Tax Protestor label

but the constraint may be disregarded for practicing war tax

resisters such as plaintiff.

40



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iii

III. Plaintiff Has a Valid Claim for an Injunction to Prevent the IRS .from Violating Her Constitutional Rights and Constraints Enacted

by Congress.

page

43

A. Legal standards for review of dismissal pursuant to ..Rule 12(b)(1) and Rule 12(b)(6).

43

B. Plaintiff has standing to seek correction of IRS ........policies, statements and actions.

44

C. The Administrative Procedures Act (APA) authorizes ..courts to review and enjoin agency action that violates theConstitution or Congressional constraints.

46

D. The Anti-Injunction Act (AIA) does not leave a taxpayer .without redress from IRS abuse, especially when, as here,abuse is unjustifiable.

48

1. AIA text, purpose and legal standard. . 48

2. The AIA does not apply when, as here, a taxpayer .has no other avenue for obtaining relief.

49

3. The AIA does not bar review of agency abuse, .like that occurring here, that is clearly unjustifiable.

50

IV. The Religious Freedom Restoration Act (RFRA) Requires ..the IRS to Accommodate Religious Practices of Tax ResistanceThat Conform to Law Except as to Actual Payment of Taxes.

53

A. Legal Standard for an Action under RFRA. .. 53

B. Plaintiffs practice of war tax resistance is an exercise of ..religion that is substantially burdened by unauthorized IRS

procedures.

54

C. Unauthorized IRS procedures aimed at suppressing ..plaintiffs religious practice do not further a compellinggovernmental interest by the least restrictive means.

55



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V. The District Court Erred in Refusing to Allow Plaintiff to ..Amend Her Complaint.

page

58

A. Legal Standard. .. 58

B. Plaintiff States Good Grounds for an Amended Pleading. 58

CONCLUSION .. 59

Certificate of Compliance .. 60

Request for Oral Argument .... 61

Statement of Related Cases .... 62

ADDENDUM Text of Referenced Constitutional Provisions and Statutes;Referenced IRS Regulatory Memorandum

A. Constitutional Provisions.

1. First Amendment. 64

2. Fifth Amendment. ... 64

B. Statutes.

1. 26 U.S.C. 7421(a) (Anti-Injunction Act or AIA) . 65

2. 26 U.S.C 6651 (pertinent parts) .... 66

3. 26 U.S.C. 6702 (enacted 1982) 67

4. 26 U.S.C. 6702 (as amended 2006) .. 68

5. 3707 of the IRS Restructuring and Reform ...

Act of 1998 or RRA (uncodified).

70

6. 42 U.S.C. 2000bb et. seq. (Religious Freedom ..Restoration Act of 1993 or RFRA) (pertinent sections)

71

C. Memorandum from IRS Counsel re Frivolous Return Program (RRA 3707 and I.R.C. 6702)

73



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v

TABLE OF AUTHORITIES

CASES

Adams v. Comm., 170 F.3d 173 (3d Cir. 1999) ............................................... passim

Alexander v. Commissioner, T.C. Memo. 2012-75 .................................................50

American Friends Service Comm. v. U.S., 368 F.Supp. 1176 (E.D. Pa. 1973) .......34

Ashcroft v. Iqbal, 556 U.S. 662 (2009)....................................................................43

Axson-Flynn v. Johnson, 356 F. 3d 1277 (10th Cir. 2004) .....................................26

Blackhawk v. Pennsylvania, 381 F. 3d 202 (3rd Cir. 2004) ..............................27, 29

Bob Jones Univ. v. Simon, 416 U.S. 725 (1974) .....................................................48

Bowen v. Roy, 476 U.S. 693 (1986) ........................................................................22

Bradley v. U.S., 817 F.2d 1400 (9th Cir. 1987) .................................................37, 38

Broadrick v. Oklahoma, 413 U. S. 601 (1973) ........................................................44

Browne v. U.S., 176 F. 3d 25 (2nd Cir. 1999) .........................................................35

Chubb Custom Insurance Co. v. Space Systems/Loral, Inc.

710 F.3d 946 (2013) ...........................................................................................33

Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) ........... passim

Church of Scientology v. U.S., 920 F. 2d 1481 (9th Cir. 1990.)........................48, 50

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) .........................47

City of Boerne v. Flores, 521 U.S. 507 (1997) ..................................................15, 22

Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013) ...........................................44

Clayton v. Republic Airlines, Inc., 716 F.2d 729 (9th Cir.1983) .............................43

Cohen v. U.S., 650 F. 3d 717 (D.C. Cir. 2011) .......................................................52

Daniels-Hall v. National Education Assn, 629 F. 3d 992 (9th Cir. 2010). ...............7

DBSI/TRI IV Ltd. Partnership v. U.S., 465 F. 3d 1031 (9th Cir. 2006) ...................47

District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783(2008) .....................14

eBay Inc. v. Mercexchange, LLC, 547 U.S. 388 (2006) ..........................................47

Eicher v. U.S., 774 F. 2d 27 (1st Cir. 1985) ......................................................37, 50



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Employment Div., Dept. of Human Resources of Ore. v. Smith,

494 U.S. 872 (1990) ................................................................................... passim

Engel v. Vitale, 370 U.S. 421, 425-430 (1962) .......................................................22

Enochs v. Williams Packing & Navigation Co., 370 U.S. 1 (1962) ............48, 49, 51Goehring v. Brophy, 94 F. 3d 1294 (9th Cir. 1996) ................................................55

Gonzales v. O Centro Espirita Beneficente Unio do Vegetal,

546 U.S. 418 (2006) ...........................................................................................53

Hartmann v. Stone, 68 F.3d 973 (6th Cir. 1995) .....................................................26

Heckler v. Chaney, 470 US 821 (1985) ...................................................................29

Hernandez v. Comm., 490 U.S. 680 (1989).......................................................30, 56

Hibbs v. Winn, 542 U.S. 88 (2004)....................................................................47, 52Hudson v. U.S., 766 F. 2d 1288 (9th Cir. 1985) ................................................36, 50

Jenkins v. Rucker, 95 A.F.T.R.2d 1182 (D.D.C. 2005) ...........................................52

Jenney v. U.S., 755 F.2d 1384 (9th Cir. 1985) ......................................16, 35, 36, 50

Judicial Watch, Inc. v. Rossotti, 317 F. 3d 401 (4th Cir. 2003) ........................49, 50

Kahn v. United States, 753 F. 2d 1208, 1215 (3d. Cr. 1985) ......................15, 36, 50

Lacey v. Maricopa County, 693 F. 3d 896 (9th Cir. 2012) .....................................43

Leslie v. Attorney General, 611 F.3d 171 (3d Cir. 2010) ........................................52Lopez v. Smith, 203 F. 3d 1122 (9

th Cir. 2000) ........................................................58

Love v. United States, 915 F.2d 1242 (9th Cir. 1989) .............................................43

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..............................................44

Mayfield v. U.S., 599 F. 3d 964 (9th Cir. 2010) ......................................................45

McDaniel v. Paty, 435 U. S. 618 (1978) .................................................................29

McGlotten v. Connally, 338 F. Supp. 448 (D.D.C. 1972) .......................................52

Meese v. Keene, 481 U.S. 465 (1987) .....................................................................44

Miller v. Comm., 114 T.C. 511 (2000) ....................................................................30

Miller v. Standard Nut Margarine Co., 284 U.S. 498 (1932) .................................50

Moore-Backman v. U.S., No. CV 09-397-TUC-RCC (BPV),

2010 WL 3342173 (D. Ariz. June 8, 2010) ........................................................35



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Nat. Taxpayers Union v. U.S., 68 F. 3d 1428 (D.C. Cir. (1995) .......................48, 49

National Federation of Independent Business v. Sebelius,

132 S. Ct. 2566 (2012) .................................................................................48, 54

Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir.2008) ...............54, 55Phillips v. Commissioner, 283 U.S. 589 (1931) .....................................................51

Rweyemamu v. Cote, 520 F. 3d 198 (2nd Cir. 2008) .........................................53, 54

Safe Air for Everyone v. Meyer, 373 F.3d 1035(9th Cir. 2004) ..............................43

Salmon Spawning & Recovery Alliance v. Gutierrez,

545 F.3d 1220 (9th Cir. 2008) ............................................................................45

South Carolina v. Regan, 465 U.S. 367 (1984) ...........................................48, 49, 50

Stormans, Inc. v. Selecky, 571 F. 3d 960 (9th Cir. 2009) ........................................25Summers v. Earth Island Institute, 129 S. Ct. 1142 (2009) ...............................44, 45

Tax Analysts and Advocates v. Shultz, 376 F. Supp. 889 (D.D.C. 1974) ................47

The Presbyterian Church (U.S.A.) v. U.S., 870 F.2d 518 (9th Cir. 1989) ...............47

Todd v. U.S., 849 F.2d 365 (9th Cir. 1988) .......................................................38, 39

U. S. v. Philadelphia Yearly Meeting of the Religious Society of Friends,

322 F. Supp. 2d 603 (E.D. Pa. 2004) ............................................................15, 55

U.S. v. Americans Friends Service Committee, 419 U.S. 7 (1974) ...............2, 34, 35U.S. v. Lee, 455 U.S. 252 (1982) .......................................................................30, 56

Umoren v. Commissioner, T.C. Memo 2012-117 ...................................................50

Whitmore v. Arkansas, 495 US 149 (1990) .............................................................44

Wilkins v. U.S., 279 F. 3d 782 (9th Cir. 2002) .........................................................26

Wisconsin v. Yoder, 406 U. S. 205 (1972)...............................................................29

CONSTITUTION OF THEUNITEDSTATES

First Amendment, Establishment Clause ..........................................................18, 22

First Amendment, Free Exercise Clause ......................................................... passim

First Amendment, Free Speech Clause ...................................................................58

Fifth Amendment, Due Process Clause ...................................................................58



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STATUTES

5 U.S.C. 701 .........................................................................................................46

5 U.S.C. 702 .........................................................................................................46

5 U.S.C. 703 .........................................................................................................46

5 U.S.C. 704 .........................................................................................................47

5 U.S.C. 706 .........................................................................................................47

26 U.S.C. 6651(a)(2) ......................................................................................16, 32

26 U.S.C. 6702 ............................................................................................. passim

26 U.S.C. 6702(b) .......................................................................................8, 28, 39

26 U.S.C. 6702(b)(3) ..............................................................................................8

26 U.S.C. 6702(c) ...........................................................................................27, 28

26 U.S.C. 6702(d) .................................................................................................29

26 U.S.C. 7421(a) .................................................................................................48

26 U.S.C. 7805(a) .................................................................................................29

28 U.S.C. 1291 .......................................................................................................1

28 U.S.C. 1331 .......................................................................................................1

42 U.S.C. 2000bb-1(a) ..........................................................................................54

42 U.S.C. 2000bb-1(b) .........................................................................................54

42 U.S.C. 2000bb1(c) .....................................................................................1, 53

Administrative Procedures Act (APA) ..........................................................46, 47

Affordable Care Act ................................................................................................54

Anti-Injunction Act (AIA) ........................................................................... passim

IRS Restructuring and Reform Act of 1998 (RRA).............................................40

Religious Freedom Restoration Act of 1993 ................................................... passim

Tax Equity and Fiscal Responsibility Act of 1982 ..............................................2, 35

The Tax Relief and Health Care Act of 2006 (TRHCA) ................................. passim

Uncodified section 3707 of RRA ................................................................40, 41, 42



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OTHER

26 C.F.R. 301.7701-9 ...........................................................................................29

Cords, D., Tax Protestors and Penalties: Ensuring Perceived Fairness and

Mitigating Systemic Costs, 2005 B.Y.U. L. Rev. 1515 (2005) .. 40Faith and Practice: A Guide to Quaker Discipline in the Experience of

Pacific Yearly Meeting of the Religious Society of Friends (2001) .............11, 13

Fed.R.Civ.Pro. 12(b)(1) ................................................................................... passim

Fed.R.Civ.Pro. 12(b)(6) ...........................................................................3, 17, 19, 43

Fox, G., The Journal of George Fox (rev. Nickalls ed. 2005) ..........................12, 14

FRAP 4(a)(1)(B) ........................................................................................................1

Gross, D., ed.,American Quaker War Tax Resistance from the 17

th

through the 19th

century, a documentary history, (2008) ...................................14

Guiton, G., The Early Quakers and the Kingdom of God: Peace,Testimony and Revolution (2012) .................................................................12, 14

Jones, R., The Quakers in the American Colonies (1911, 1966 ed.) .......................14

S. Rep. no. 105-174 (1998) .....................................................................................40

S.Rep. No. 494, 97th Cong., 2d Sess .................................................................36, 37

Treasury Department Memorandum re Frivolous Return Program

(RRA 3707 and I.R.C. 6702) .........................................................................41

TREASURY INSPECTORGENERAL FORTAX ADMINISTRATION,FISCAL YEAR2005STATUTORY AUDIT OF COMPLIANCE WITH LEGAL GUIDELINES PROHIBITING THEUSE OF ILLEGAL TAX PROTESTERAND SIMILARDESIGNATIONS,REP.NO. 2005-40-104 (2005) ......................................................................................................40

Wilson, E. R., Uphill for Peace: Quaker Impact on Congress (1975) ....................15

Wright & Koch,Federal Practice & Procedure, Judicial Review of AdministrativeActions, 8313 ....................................................................................................45



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JURISDICTION

Plaintiff Elizabeth Boardman, a taxpayer and a resident of Yolo County,

California, filed a Complaint in the District Court for the Eastern District of

California against Defendant Commissioner of Internal Revenue, pursuant to the

Constitution and 28 U.S.C. 1331, seeking to restrain the Internal Revenue

Service (IRS) from using the term frivolous to label plaintiffs religious

practice of war tax resistance and from attempting to suppress such religious

practice by unauthorized means; and, pursuant to the Religious Freedom

Restoration Act of 1993 and 42 U.S.C. 2000bb-1(c), seeking an accommodation

of such religious practice. (ER_23-42.)

On December 6, 2012, the District Court dismissed the action and entered

Judgment in favor of defendant and against plaintiff, disposing of all claims.

(ER-2.)

On December 28, 2012, plaintiff filed her Notice of Appeal, which is timely

pursuant to FRAP 4(a)(1)(B). (ER-1.) This court has jurisdiction pursuant to 28

U.S.C. 1291.



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STATEMENT OF ISSUES FOR REVIEW

1. Whether the traditional Quaker practice of war tax resistance1 is

protected by the Free Exercise Clause of the First Amendment from being labeled

frivolous by the Internal Revenue Service (IRS) and from being subjected to

suppression and/or special handling.

2. Whether, as the District Court found, the Anti-Injunction Act (AIA)

bars plaintiffs present action, which is the only forum available for her to seek a

remedy for unjustifiable bureaucratic suppression by the IRS of her free exercise of

religion and to seek an accommodation for her religious practice of war tax

resistance pursuant to the Religious Freedom Restoration Act of 1993 (RFRA).

3. Whether RFRA requires the IRS to accommodate religious practices

of tax resistance according to principles incorporated in the Tax Equity and Fiscal

Responsibility Act of 1982, which authorize immediate collections from taxpayers

who file correct returns but who refuse to pay, including collection of statutory

penalties, and which also provide a safe harbor for such taxpayers from additional

penalties and from the label of frivolous.

1 The practice of war tax resistance is described in U.S. v. Americans FriendsService Committee, 419 U.S. 7, 8 (1974) (AFSC), which involved Quakers whowished to bear witness to their beliefs by reporting the amounts as taxes owed ontheir annual income tax returns but refusing to pay such amounts. They wouldthus compel the Government to levy in order to collect the taxes.



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STATEMENT OF THE CASE

Plaintiff filed the action on March 13, 2012. (ER-23.) On June 29, 2012,

Defendant moved to dismiss pursuant to Fed.R.Civ.Pro. 12(b)(1) and

Fed.R.Civ.Pro. 12(b)(6). (ER_4:1-8.) After briefing, the District Court granted the

Motions. (ER_4:8-11.) Dismissal and Judgment were entered on December 6,

2012. (ER-2.)



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FACTS AND PROCEEDINGS BELOW

A. General Statement of Plaintiffs Claims as a Quaker and Practitioner ofWar Tax Resistance.

Plaintiffs Complaint commences with a summary (ER_23:2125:2):

Plaintiff Elizabeth Boardman is a lifelong Quaker and peace

activist. As a practice of her religion and following the dictates of her

conscience, Boardman refuses voluntarily to pay the percentage of her

federal income taxes that is directed towards war. For tax years 2007

and 2008, Boardman filed full federal income tax returns, providing

complete information to the Internal Revenue Service (hereinafter

Service) about her tax liabilities and retentions. Boardman stated in

attached correspondence that her conscience and religious beliefs

would not allow her to pay the full amount due. Boardman provided

the Service with notice of deposit in a financial institution of funds

sufficient to satisfy her tax obligations and declared a willingness to

deliver such funds for peaceful uses.

Plaintiff is informed and believes and thereon alleges that

defendant Commissioner attaches the label frivolous to a taxpayers

refusal to pay taxes based on moral, religious, or ethical

objections to the government programs or policies for which the taxes

will be used. Plaintiff is informed and believes and thereon alleges

that defendant Commissioner threatens to impose discretionary

punishments on taxpayers who express conscientious or religious

objections to use of tax money for purposes of war.

Plaintiff is informed and believes and thereon alleges that the

Service acted with the intention of burdening, frustrating and

thwarting the religious practice of plaintiff Elizabeth Boardman when,

as to tax years 2007 and 2008, the Service deprived Boardman of

rights and procedures which would otherwise have been available,



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including a Tax Court determination of her claims; the Service

misrepresented statements of Boardman when it made decisions; and

the Service provided false, erroneous and/or misleading information

to Boardman.

The religious practice of plaintiff Elizabeth Boardman and other

pacifists is not frivolous. Through her practice, Boardman upholds

teachings of Jesus of Nazareth and ideals of universal peace. She

stands for the Quaker Peace Testimony that was first declared in 1660

and that is of central importance in her religion. The teachings of the

Quaker religion that guide Boardman confirm the voice of her own

conscience in declaring that she cannot accede to, join in or pay for a

system that kills and wounds people, that devastates the homes and

cities of survivors and that multiplies forces of destruction it claims

dishonestly to be suppressing.

No monetary recovery is requested in Boardmans claims in this action, only

injunctive relief as to future statements and actions by the IRS. (ER_42:1-16.)

All taxes owed for 2007 and 2008 have been collected through levy or other

compulsion. (ER_36:21-28; 38:6-8.)

The position of plaintiff Elizabeth Boardman is that paying for

war is repugnant to her religion and to her conscience. She

understands that the Service will collect the amounts due by other

means and that her assets may be levied or seized or that she may be

ordered to pay by a court. Refusing to make tax payments for war,

bearing witness on behalf of the Peace Testimony to the Service and

to the world and suffering levies and court orders is a practice of the

religion of plaintiff Elizabeth Boardman. (ER_35:24-36:4.)

In paragraph 4, under the heading Jurisdiction and Parties, Plaintiff



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attempts to distinguish her claims from others that might be attributed to her:

Plaintiff does not seek to restrain assessment or collection of any tax.

Plaintiff does not desire to impair or impede the administration of

federal tax laws. Plaintiff is not attempting to reduce or eliminate her

federal tax liability. Plaintiff is not contending in this proceeding that

she has a right to avoid paying any amount of taxes or any penalty or

interest imposed by Congress. Plaintiff asks the Court to enjoin

actions by the Commissioner that violate the Constitution and/or to

order compliance with RFRA. Plaintiff is informed, believes and

thereon alleges that the Service can accommodate bona fide religious

war tax resisters without negative impact upon tax collection and

enforcement duties as defined by Congress.

(ER_26:1-9.)



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B. Facts Supporting Claim for Protection of Plaintiffs Free Exercise of Religion.

1. The IRS publishes statements that religious practices of war taxresistance are frivolous and implies that such practices aretargeted for special handling.

The Complaint includes material from the online Internal Revenue Manual:

Example:

The taxpayer writes on Form 12153 that he is morally opposed to war

and refuses to pay the portion of his taxes equal to the percentage of

the federal budget being spent on the war effort. Notice 2008-14,

section 1(h), identifies as a "frivolous position" a taxpayers

disagreement with the governments use of tax revenues or similar

arguments described in Rev. Rul. 2005-20. This revenue ruling

describes as frivolous the refusal to file returns or pay taxes based

on moral, religious or ethical objections to the government

programs or policies for which the taxes will be used. This includes

the use of taxes to pay for military expenditures. Because this position

is included in Notice 2008-14, it is a "specified frivolous position."

(ER_34:18-28, emphasis supplied in Complaint.)2

According to current online Internal Revenue Manual material titled

4.10.12 Frivolous Return Program, the IRS runs a Frivolous Return Program

or FRP at Ogden Utah that may have been assigned the task of handling

2 The online Internal Revenue Manual was re-organized and updated after the

Complaint was filed. As of May 1, 2013, comparable material is posted at

http://www.irs.gov/irm/part8/irm_08-022-005.html under index 8.22.5.5.3 and

includes the sentence emphasized in the quoted text. Plaintiff asks the Court to

take judicial notice of materials posted on the Internet by the IRS. Daniels-Hall

v. National Education Assn, 629 F. 3d 992, 998-999 (9th Cir. 2010).



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Boardmans returns (http://www.irs.gov/irm/part4/irm_04-010-012r.html ).

Servicewide consolidation of the receipt and processing of all frivolous

documents at the Ogden Compliance Services Campus was completed

January 1, 2001.

The IRS, through administration of Internal Revenue Code section

6702, will address non-compliance based on unfounded legal or

constitutional arguments. This law provides for a $5000 penalty to be

imposed upon any taxpayer who files a purported return failing to

contain information from which the correctness of the reported tax

liability can be determined or that clearly indicates that the tax liability

shown must be substantially incorrect. The penalty is intended toaddress those situations where a taxpayer is furthering a frivolous

argument or demonstrates a prima facie intent to delay or impede

administration of the tax law.

IRC Section 6702(b), added by The Tax Relief and Health Care Act of

2006 (TRHCA), authorizes the IRS to impose a $5,000 penalty on a

person submitting a specified frivolous submission. Specified frivolous

submissions include CDP hearing requests, offer in compromise,installment agreement request and applications for a taxpayer

assistance order. Section 6702(b)(3) provides that the penalty will not

apply if the IRS notified the taxpayer that the submission is a specified

frivolous submission and in response the taxpayer withdraws the

submission with 30 days after the notice.

The list of Frivolous Arguments in 4.10.12 of the Internal Revenue

Manual, supra, includes one that might have been applied to Boardman:

18. Protest Against Government Action/Inaction

(WARTAX) - The individual argues that their refusal to file a

return or pay tax is justified because they disagree with

government policies or spending plans.



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2. Bureaucratic suppression appears to be directed by the IRS at

plaintiffs religious practice and at such religious practices

generally.

As to tax year 2008, Plaintiff filed her 1040 return with attached

correspondence on March 14, 2009. Her resistance to paying war taxes was not

overcome until September 22, 2010, some 18 months later. (ER_36:5-38:8.)

Summing up allegations, as to tax years 2007 and 2008, plaintiff alleges, on

information and belief, that her returns and communications were subjected to

special handling because of religious messages, that the IRS attached the label

frivolous as a justification for attempts to suppress her practice and that the IRS

led her into a bureaucratic morass. IRS collection programs ultimately ran to their

mandated completion and the accounts were cleared but required procedures were

disregarded and cut off. The $5000 penalty for frivolous submissions was

referenced by the IRS in correspondence but was not imposed. Obviously, a

clearer understanding of IRS intentions must await discovery. More generally, the

Complaint alleges that the IRS is trying to suppress religious practices of plaintiff

and similar taxpayers by bureaucratic manipulations that violate the Constitution

and Congressional constraints.

Detailed allegations are set forth in the Complaint:



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Plaintiff Boardman did not receive notices that the Service was

obligated to provide as part of its procedures. The Service improperly

levied on Boardmans Social Security benefits while disputes were

pending. Anthony G., an agent of the Service misrepresented the

request of Boardman for an equivalency hearing but deflected her

request into a Collection Due Process. Regina G., an agent of the

Service, misrepresented statements of Boardman and falsely stated

that Boardman gave up the right to seek judicial review in Tax Court.

(ER_37:27-38:5.)

Plaintiff Boardman was denied the Tax Court determination she

desired. On April 13, 2010, she wrote to the Service:

Just to keep the record clear, I wish to remind you now that I have

objected on the phone (3/14/10, G[.]) and by letter (3/16/10) to any

hearing which will result in denial of my right to appeal to a tax court.

Therefore, I was dismayed to receive your April 9 letter informing

me that such a hearing is now being arranged. (ER_37:20-26.)

Plaintiff is informed and believes and thereon alleges that the

Service is selecting practitioners of religious war tax resistance for

threats, punishment and/or discriminatory bureaucratic action. From

the facts alleged hereinabove, it appears that Boardman has suffered

from intentionally discriminatory action. (ER_41:1-5.)

Plaintiff is informed and believes and thereon alleges that

Defendant Commissioner of Internal Revenue employs punitive

procedures and/or policies against persons who fail or refuse to make

full payment of taxes on grounds of religion or conscience.

Plaintiff is informed and believes and thereon alleges that defendant

Commissioner threatens to impose discretionary punishments on

taxpayers who express conscientious or religious objections to use of

tax money for purposes of war. (ER_24:4-14.)



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C. Additional Facts Supporting Claim for Accommodation of PlaintiffsPractice Pursuant to the Religious Freedom Restoration Act of 1993.

1. Quaker war tax resistance has a religious character rooted in tradition.

Teachings of the Quaker religion as practiced by plaintiff are set forth in

Faith and Practice: A Guide to Quaker Discipline in the Experience of Pacific

Yearly Meeting of the Religious Society of Friends (2001) (Faith and Practice),

which is accessible online. (ER_27:28-28:16.) Pacific Yearly Meeting, publisher

ofFaith and Practice, is a regional organization of Quaker Monthly Meetings

(local churches) and other groups; and it has a recognized authority in certain areas

of the Western United States and nearby countries. (Faith and Practice, 13-17.)

The original Quaker religion was founded in England in the 17th

Century. The founders rejected the concept of a creed or authoritative

statement of principles, but based their faith and practice on direct

experience or experiment. Schisms occurred in later years, leading to

multiple branches of modern Quakerism [including] the branch of

Quakerism followed by plaintiff Elizabeth Boardman and many Quaker

peace activists, a branch often called unprogrammed Friends.

(Complaint at ER_27:13-27) (seeFaith and Practice at 2-12).)

The Quaker practice of war tax resistance is based on the Peace Testimony

and the Testimony of Integrity. Committed practitioners such as plaintiff also have

support in Quaker Meetings. (ER_28:11-12.) Faith and Practice describes the

religious character of Quaker Testimonies (ER_28:17-29:2):



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The word testimonies refers to deeply felt, historically rooted

attitudes and ways of living in the world. Testimonies bear witness to

the Truth as Friends in community perceive it: Truth known through

relationship with God. Testimonies are expressions of lives turned

toward the Light, outward expressions that reflect the inward

experience of divine guidance. Because the testimonies have a

religious base they might also be called the Quaker articles of faith,

but clearly for Friends it is faith that must be translated into action.

Quakerism was born amidst religious and political strife, including the

regicide of Charles I in 1649; it declared a pacifist message from the first days.3

The leading statement of the Peace Testimony was published in 1660 to answer

charges of Quaker participation in the violent Fifth Monarchy movement:

All bloody principles and practices, we, as to our own particulars, do

utterly deny, with all outward wars and strife and fightings with

outward weapons, for any end or under any pretense whatsoever. And

this is our testimony to the whole world. That the spirit of Christ,

by which we are guided, is not changeable, so as once to command us

from a thing as evil and again to move unto it; and we do certainly

know, and so testify to the world, that the spirit of Christ, which leads

us into all Truth, will never move us to fight and war against any man

with outward weapons, neither for the kingdom of Christ nor for the

kingdoms of this world. (ER_29:10-23.)4

3 See Guiton, G., The Early Quakers and the Kingdom of God: Peace,Testimony and Revolution (2012) (Inner Lights Books, San Francisco). Forexample, Appendix 5 identifies 41 specific Quaker condemnations of war,rebellion and carnal weaponry during the 1650s.4 Full text at Fox, G., The Journal of George Fox, 398-403 (rev. Nickalls ed.2005).



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Discussion inFaith and Practice of the Testimony of Integrity is headed by

the inscription on Quaker founder George Foxs memorial tablet: Live your faith.

(ER_31:18-21.)

Another founder, William Penn, wrote (ER_31:8-17):

That which the people called Quakers lay down as a main

fundamental in religion is this, that God through Christ hath placed a

principle in every man to inform him of his duty, and to enable him to

do it; and that those that live up to this principle are the people of God,

and those that live in disobedience to it are not Gods people,

whatever name they may bear or profession they may make ofreligion. This is their ancient, first, and standing testimony. With this

they began, and this they bore and do bear to the world.

The 2001 edition ofFaith and Practice maintains a guidance dated 1953:

We affirm our unchanging conviction that our first allegiance is to God,

and if this conflicts with any compulsions of the State, we serve our

countries best by remaining true to our higher loyalty. (ER_31:22-27.)

Plaintiffs Complaint alleges (ER_33:2-9):

War and involvement with war is spiritually repugnant to Quakers

who are called to war tax resistance, such as plaintiff Elizabeth

Boardman. In common with other such persons, Boardman suffers

spiritual pain from hateful propaganda that leads to war, from

celebrations of aggression and cruelty during war and from massive,

ruinous, piteous suffering caused by war. In common with other such

persons, Boardman feels outrage and despair over wars being waged

by the United States of America. Voluntary payment of taxes for such

wars would violate the integrity of plaintiff Elizabeth Boardman and

other religious war tax resisters.



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2. Pacifists and pacifist religious practices have traditionally beenaccorded respect and partial accommodation by Congress.

The name Quakers was bestowed by 17 th century English authorities on

founders of the Religious Society of Friends, who were severely punished for

crimes of blasphemy and for refusing to pay tithes, to swear oaths or to doff their

hats in the presence of titled superiors.5 The Complaint relates Quaker traditions of

civil disobedience and notes some occasions when government accommodated

Quaker practices.

Quakers practiced religious war tax resistance during Colonial Wars

and the Revolutionary War and refused to fight and refused to pay war

taxes or fees for exemption from military service, suffering seizures of

money and goods in addition to imprisonments and other punishments.

(ER_30:8-11.)6

The British colonial government accommodated the Quaker-

dominated Pennsylvania Assembly In 1693, during King WilliamsWar, the Royal Governor of Pennsylvania acceded to the pacifists

demands and promised them that: Your money will not be dipped

in blood. (ER_38:24-39:1.)7

5 Guiton, supra, generally chapters 7-11. This was Justice Bennet at Derby thatfirst called us Quakers because we bid them tremble at the word of God, and thiswas in the year 1650. Fox, supra, at 58.6 See Jones, R., The Quakers in the American Colonies (1911, 1966 ed.); Gross,D., ed.,American Quaker War Tax Resistance from the 17

ththrough the 19

th

century, a documentary history, (2008).7

Gross, supra, at 9-11 and 16-18; See alsoDistrict of Columbia v. Heller, 554U.S. 570, 128 S.Ct. 2783, 2796 (2008). (Pennsylvania Militia Act of 1757exempted from service those scrupling the use of arms)



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Religious pacifists have witnessed throughout the history of the

United States in support of the ideal of universal peace. War tax

resistance, conscientious objection to conscription and other forms of

pacifist civil disobedience continued through the War of 1812, the

Mexican War and the Civil War. Although not a Quaker, Henry

David Thoreau spent a night in jail for refusing to pay poll taxes and

wrote Civil Disobedience encouraging such practices. Many Quakers

on both sides of the Civil War refused to pay taxes or fees imposed in

lieu of military service.8 (ER_30:12-18.)

During the Civil War, to accommodate pacifists demands, Congress

provided that the commutation fee for exemption from military

service was to be applied solely to the benefit of sick and wounded

soldiers.9 (ER_39:10-12.)

Conscientious objectors to military conscription began to perform

alternative service during the First World War. A formal Civilian

Public Service as an alternative to military service was established

during the Second World War. (ER_39:13-15.)10

8 See City of Boerne v. Flores, 521 U.S. 507, 548-551, 557-560 (1997)(OConnor, J., diss. op.);Kahn v. United States, 753 F. 2d 1208, 1215 (3d. Cr.1985) (Thoreau); Gross, supra, e.g., at 96-101, 196-199, 241-306 and 354-444.9U. S. v. Philadelphia Yearly Meeting of the Religious Society of Friends, 322 F.Supp. 2d 603, 605 (E.D. Pa. 2004) (Phil. Y. Mtg.).10 Both sound morals and sound policy require that the State should not violatethe conscience of the individual. When one realizes the seriousness of their

purpose and the power of their influence, he can have no illusion that the mereapplication of force to conscientious objectors will bring any solution to the

problem. Harlan F. Stone, writing about his involvement as Attorney General inthe 1918 Army Board of Inquiry that led to alternative service, as quoted inWilson, E. R., Uphill for Peace: Quaker Impact on Congress (1975) at 13.Wilson lobbied on behalf of conscientious objectors in 1940 when conscriptionwas re-introduced. Id. at 10-11.



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Modern war tax resistance developed during the Indochina War.

A. J. Muste, a religious pacifist with Quaker connections, organized the

publication of an advertisement in the Washington Post in which

numerous famous persons declared their intentions to withhold tax

payments as a war protest. Students at Swarthmore College, a Quaker

school, helped to organize a national campaign of refusal to pay the

war-based 10% excise tax on telephone charges, in which plaintiff

Elizabeth Boardman played an active role, as hereinabove alleged.

(ER_30:19-25.)11

3. The IRS imposes substantial burdens on plaintiffs religious practicewhen measured against protections from frivolous filing penalties in the

1982 version of 26 U.S.C. 6702.

Plaintiff contends that labels, special handling and suppressive tactics of the

IRS, set forth supra, constitute a substantial burden on her religious practice under

RFRA. Unburdened processing would have been based on principles implicit in

the original version of 26 U.S.C. 6702 as approved in Jenney v. U.S., 755 F.2d

1384 (9th Cir. 1985) and other cases discussed infra. According to such principles,

taxpayers who file correct returns but who refuse to pay are penalized at rates set

forth in 26 U.S.C. 6651(a)(2) but are not subject to a further penalty for

frivolous submissions, regardless of whether protests or other messages are

included. Unpaid taxes are immediately collectible by levy or other involuntary

means. Amendments enacted as part of TRHCA, supra, did not alter such

principles implicit in 6702 but a more complex situation is presented.

11 See Benn, R. & Hedemann, E., War Tax Resistance: A Guide to WithholdingYour Support from the Military (5th ed., 2003) at 27-31 and 72-77.



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D. Facts Supporting Requests for Injunctive Relief.

Plaintiff has no adequate remedy at law. She does not contend herein that

the amount of any determination of tax or penalty by the Service was improper and

she does not seek any monetary damages. (ER_41:19-21.)

Plaintiff alleges (ER_41:22-25, 25:10-13;):

Violations of plaintiffs constitutional right to freely exercise her

religion and deprivations of her religious freedom, including those

that occurred in the past and those that are threatened in the future,

constitute irreparable injuries that should not be borne and that impelplaintiff to seek the assistance of this court of equity.

Plaintiff is informed and believes and thereon alleges that efficient

and respectful procedures for such taxpayers of conscience can be

established and maintained with no more burden on or expense to the

Service than the obstructive and insulting procedures now in place.

E. Motion of Defendant to Dismiss the Action in District Court; Order ofDismissal and Judgment.

On June 29, 2012, defendant moved pursuant to Fed.R.Civ.Pro. 12(b)(1) to

dismiss on grounds of lack of subject matter jurisdiction; and defendant also

moved pursuant to Fed.R.Civ.Pro. 12(b)(6) to dismiss the action for failure to state

a cause of action. (ER_4:1-8.) Plaintiff filed opposition and Defendant filed a

reply. (ER_4:8-9.) The District Court granted the Motions. (ER_4:10-11.)

Dismissal and Judgment were entered on December 6, 2012. (ER-2.)



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SUMMARY OF ARGUMENT

Respect shown by the American people for minority religions and dissident

religious practices is rooted in histories of Quakers, Roman Catholics, Baptists and

other religious dissenters who suffered persecution in England and in the American

colonies during the 17th and 18th Centuries. Such respect was expressed at the

founding of the Republic in the Establishment Clause and the Free Exercise Clause

which head the First Amendment and the Bill of Rights. Such respect has been

repeatedly reiterated in Congressional enactments, including the Religious

Freedom Restoration Act of 1993 (RFRA). Plaintiff suggests that such respect is

also implicit in Congressionally-imposed constraints on IRS powers to deal with

tax protestors and resisters. Constitutional prohibitions, positive commands of

RFRA and Congressional constraints on IRS powers all unite to protect a religious

practice of war tax resistance that includes correct tax reporting from a label of

frivolous, from suppressive bureaucratic manipulations and from punishment

imposed at IRS discretion. In contrast to prior Quaker tax cases where requested

accommodations of religious practices at issue would have conflicted with statutes

enacted by Congress, Boardmans practice has been protected by Congress in

multiple ways. Boardman contends that, as to her religious practice of war tax

resistance, it is the IRS that is seeking to override Congressional intentions and

constraints.



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Modern Free Exercise jurisprudence pivots aroundEmployment Div., Dept.

of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990) (Smith). Thereon, a

previous expansive phase of interpretation of the Free Exercise Clause came to an

end and a new compacted phase began. Notwithstanding such compaction, core

Free Exercise protections continue without change to prohibit the IRS from

selecting religious tax resisters for special handling, as apparently occurred in

Boardmans case. Discretionary powers that are applied selectively, as here, to

religion or potentially between religious sects must undergo strict scrutiny.

Here, selective attention and suppressive techniques directed at religious tax

resisters cannot be justified when examined by means of strict scrutiny. Congress

has imposed a statutory penalty for nonpayment of taxes. Additional penalties are

properly imposed for waste of agency resources. However, among taxpayers who

fail to pay, those who file correct returns and attach religious messages waste

relatively few resources. The IRS appears to be targeting religious messages and

aiming to suppress dissent rather than targeting waste.

The District Court declined to address Boardmans claims. Dismissing

pursuant to Rule 12(b)(1), the District Court held that her claims were barred by

the Anti-Injunction Act (AIA). The District Court also found that plaintiffs

claims lacked sufficient substance to go forward and dismissed pursuant to Rule

12(b)(6). As to the label frivolous: The Court finds that Defendant uses



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frivolous in its legal context, referring to an argument lacking a legal or factual

basis. (ER20:27-28.) Supreme Court and Ninth Circuit cases estop Plaintiff

from bringing her lawsuit, a religious objection to the countrys tax system, even if

she does not dispute her overall tax liability. (ER22:21-24.) The District Court

found that Boardman was seeking extensive and burdensome changes to

Defendants already complex taxation system. (ER12:4-6.)

Plaintiff submits that the District Courts findings and rulings were

erroneous. Plaintiffs requested remedies would not affect tax collection and are

neither extensive nor burdensome. Plaintiff submits that the IRS should

correct statements in online publications and operational instructions where

application of the label frivolous to a religious practice is contrary to law as

declared by this and other courts. The IRS should limits its operations within

constraints enacted by Congress. Under rules declared by the Supreme Court, such

erroneous statements and improper operations of the IRS are not to be immunized

from correction by invocation of the AIA. There is no justification for them and

there is no forum where plaintiff can obtain correction of them other than through

this action.

Suitable relief is available pursuant to RFRA. Congress enacted RFRA in

direct response to the Supreme Court's decision in Smith, supra. RFRA expands

protections for dissident religious practices beyond core safeguards provided under



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current Free Exercise jurisprudence and mandates positive accommodation of such

practices by federal agencies. As shown by prior Quaker tax cases, RFRA

jurisprudence does not provide for accommodation beyondCongressionally-

defined exemptions and definitions; but here, Boardman seeks accommodation

within Congressionally-defined constraints and definitions. Recognizing rights of

tax protestors and tax resisters, Congress has provided certain protections for

certain kinds of conduct, including religious conduct. Such protections are

congruent with protections provided by RFRA and with modern Free Exercise

jurisprudence. The power of Congress to define categories for purposes of taxation

is the most consistent thread in such jurisprudence. There is no bar to

accommodation, when, as here, accommodation consists of carrying out the

intentions of Congress and adherence to a system set up by Congress that has a

protected place for limited protests, along with respectful treatment of such limited

and protected protest conduct, e.g., when carried out as a religious practice.

Should Boardmans present showing be insufficient, she asks for leave to

file an amended complaint that corrects the defects. Exact amendments would

depend on reasons given for affirming dismissal of the present complaint, as stated

by this Court. Various additional allegations might serve such purposes.



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LEGAL ARGUMENT

I. The Free Exercise Clause of the First Amendment Prohibits theIRS from Labeling a Religious Practice as Frivolous,Discriminating Against Its Practitioners or Targeting It for Suppression.

A. A Legal Standard of strict scrutiny applies to statements and actionsof the IRS that are hostile to religion or that target religious

practitioners for adverse treatment.

The First Amendment to the Constitution states that: Congress shall make

no law respecting an establishment of religion, or prohibiting the free exercise

thereof The Free Exercise Clause, like the Establishment Clause, addressed

concerns that arose from historical instances of religious persecution and

intolerance suffered by Quakers, Roman Catholics, Baptists and other religious

dissenters in England and in the American colonies during the 17 th and 18th

Centuries. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532

(1993) (Lukumi), quoting fromBowen v. Roy, 476 U.S. 693, 703 (1986). See

also the dissenting opinion of Justice OConnor in City of Boerne, supra, 521 U.S.

507, 548-551, 557-560, andEngel v. Vitale, 370 U.S. 421, 425-430 (1962).

InLukumi, supra, local government tried to outlaw animal sacrifice at a

planned Santeria Church through ostensible regulation of slaughtering practices.

The Court affirmed principles that a law targeting religious beliefs as such is

never permissible and that the Free Exercise Clause protects against

governmental hostility which is masked, as well as overt. (508 U.S. at 533, 534.)



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Lukumi states the current legal standard for Free Exercise cases:

In addressing the constitutional protection for free exercise of religion,

our cases establish the general proposition that a law that is neutral

and of general applicability need not be justified by a compellinggovernmental interest even if the law has the incidental effect of

burdening a particular religious practice. [Smith.] Neutrality and

general applicability are interrelated, and, as becomes apparent in this

case, failure to satisfy one requirement is a likely indication that the

other has not been satisfied. A law failing to satisfy these

requirements must be justified by a compelling governmental interest

and must be narrowly tailored to advance that interest.

(508 U.S. at 530-531.)

Although Smith reduced the class of cases that qualify for strict scrutiny, it

also re-affirmed core protections for those that do qualify.

The government may not punish the expression of religious

doctrines it believes to be false, impose special disabilities on the

basis of religious viewsor religious status

But the "exercise of religion" often involves not only belief and

profession but the performance of (or abstention from) physical acts:

assembling with others for a worship service, participating in

sacramental use of bread and wine, proselytizing, abstaining from

certain foods or certain modes of transportation. It would be true, we

think (though no case of ours has involved the point), that a state would

be "prohibiting the free exercise [of religion]" if it sought to ban such

acts or abstentions only when they are engaged in for religious reasons,

or only because of the religious belief that they display.

(Smith, 494 U.S. 877, citations omitted).)



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Similarly, theLukumi Court reviewed and re-affirmed historical protections

of free exercise of religion (508 U.S. at 532-533):

At a minimum, the protections of the Free Exercise Clause pertain ifthe law at issue discriminates against some or all religious beliefs or

regulates or prohibits conduct because it is undertaken for religious

reasons.

Here, it appears that a tax return, factually correct but lacking full payment,

may be given special treatment if messages are attached with religious reasons for

refusal that is not given when no such messages are involved. The IRS appears to

punish the expression of religious doctrines it believes to be false [or to] impose

special disabilities on the basis of religious views. (Smith) The IRS appears to

ban such acts or abstentions only when they are engaged in for religious reasons,

or only because of the religious belief that they display. (Smith.) The IRS

apparently discriminates against some or all religious beliefs or regulates or

prohibits conduct because it is undertaken for religious reasons. (Lukumi.)

In articulating the standard for whether a law is neutral and of general

applicability, theLukumi Court held (508 U.S. at 533):

A law lacks facial neutrality if it refers to a religious practice without

a secular meaning discernible from the language or context.

Here, the IRS is not administering the Code in a neutral way and its

approach lacks facial neutrality. (Lukumi, supra.) The definition of frivolous



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employed by the IRS (refusal to pay taxes based on moral, religious or ethical

objections) clearly refers to a religious practice without a secular meaning. Id.

Boardman submits that, when allegations of the Complaint are given

presumptive validity, it, like the record inLukumi, compels the conclusion that

suppression of the central element of the [Quaker religious practice] was the object

of IRS actions. (Id. at 534)

In a contrasting case, Stormans, Inc. v. Selecky, 571 F. 3d 960 (9th Cir.

2009), the court rejected a Free Exercise challenge to rules that require pharmacies

to dispense contraceptive medications despite pharmacists religious beliefs against

contraception. The court held that the rules constituted a neutral and generally

applicable law that did not call for strict scrutiny. (571 F. 3d at 981-987.) The

new rules do not aim to suppress, target, or single out in any way the practice of

any religion because of its religious content. (571 F.3d at 982.) There is no

evidence that State Appellants pursued their interests only against conduct with a

religious motivation. (Id. at 984.)

Facts alleged in Boardmans Complaint, confirmed by online IRS statements,

show what appears to be a program of suppression by the IRS that has a focus on

religious practitioners of war tax resistance. Of course, evidence about the

existence, extent and intensity of such program or focus must await discovery.

Evidence about such program or focus might range from express written directives



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to unwritten customs that are implicit in notes in files. InAxson-Flynn v. Johnson,

356 F. 3d 1277 (10th Cir. 2004), plaintiff alleged that she was forced out of a State

University acting class because she refused to utter certain words prohibited by her

religion. The court reversed summary judgment in favor of defendant and

remanded for further proceedings on whether the script adherence requirement

was discriminatorily applied to religious conduct (and thus was not generally

applicable). (Id. at 1294.) The court held that plaintiff may show a pattern of ad

hoc discretionary decisions amounting to a system. (Id. at 1299.)

See alsoHartmann v. Stone, 68 F.3d 973 (6th Cir. 1995) (Army regulations

improperly suppressed religious practices of persons providing foster care for

children of military personnel serving overseas); Wilkins v. U.S., 279 F. 3d 782 (9th

Cir. 2002) (Free Exercise claim for injunctive relief can proceed despite traditional

deference for military decisions and failure to exhaust administrative remedies that

might have allowed for additional claims).

B. A legal standard of strict scrutiny applies to discretionary decisionsby the IRS that potentially discriminate against religion, religiouspractitioners or particular sects.

InLukumi, supra, the Court applied the principle stated in Smith that laws

burdening religious practice must be of general applicability in order to escape

strict scrutiny. (508 U.S. at 542.)



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All laws are selective to some extent, but categories of selection are of

paramount concern when a law has the incidental effect of burdening

religious practice. The Free Exercise Clause "protect[s] religious

observers against unequal treatment," [citation] and inequality results

when a legislature decides that the governmental interests it seeks to

advance are worthy of being pursued only against conduct with a

religious motivation.

The principle that government, in pursuit of legitimate interests,

cannot in a selective manner impose burdens only on conduct

motivated by religious belief is essential to the protection of the rights

guaranteed by the Free Exercise Clause. (Id. at 542-543.)

InBlackhawk v. Pennsylvania, 381 F. 3d 202, 209 (3rd Cir. 2004), Circuit

Judge Alito wrote (emphasis added, citations omitted):

If a law burdening religiously motivated conduct is not neutral and

generally applicable, it must satisfy strict scrutiny. Accordingly, it

must serve a compelling government interest and must be narrowly

tailored to serve that interest. Similarly, a law must satisfy strictscrutiny if it permits individualized, discretionary exemptions

because such a regime creates the opportunity for a facially neutral

and generally applicable standard to be applied in practice in a way

that discriminates against religiously motivated conduct.

Section 6702 was amended by TRHCA, supra, in 2006. Added provisions

state: The Secretary shall prescribe (and periodically revise) a list of positions

which the Secretary has identified as being frivolous for purposes of this

subsection. (26 U.S.C. 6702(c).) If a person submits certain specified requests,

e.g., for a hearing after notice of lien or for a hearing before levy, and if any



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portion of such submission is based on a position which the Secretary has

identified as frivolous under subsection (c), the person shall pay a penalty of

$5,000. (26 U.S.C. 6702(b).)

Plaintiff suggests that a legal position might be characterized as frivolous

but she does not assert a legal position to justify her practice. She maintains her

practice because of commands of her conscience without consideration of legal

positions. Her statements of position in justification of her practice (e.g., ER_37:5-

16) are forms of testimony, even if they appear to be misguided from a legal

perspective. As argued infra, the Congressionally-defined label frivolous cannot

be applied to plaintiffs religious practice, either factually or legally. Congress has

provided a safe harbor for a limited practice, with a zone of protection for conduct

that is disobedient but not frivolous. The safe harbor satisfied Constitutional

requirements in the 1980s and fits squarely into the analytic structure of RFRA.

As exemplified by the handling of Boardmans returns and correspondence in this

case, the IRS is now trying to close the safe harbor and to subject all religious

practices of tax resistance to threats of punishment that can be imposed in a

discretionary fashion.

In this case, categories of selection mentioned inLukumi, supra, are

frivolous positions defined at the discretion of the Secretary of the Treasury.

(26 U.S.C. 6702(c).) In addition, the Secretary has express discretion to reduce a



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penalty. (26 U.S.C. 6702(d).) Moreover, limitations on judicial review give the

Secretary a kind of prosecutorial discretion in enforcing 6702, i.e., a power of

selection as to which tax resisters are to be punished for violations. (Heckler v.

Chaney, 470 US 821, 831 (1985).) In a broader view, the Secretary exercises

discretion in setting up facilities and procedures to enforce 6702. (26 U.S.C.

7805(a); 26 C.F.R. 301.7701-9.)

Boardman submits that definitions of frivolous and IRS practices appear

to involve so much discretion, selectivity and potential for discrimination that,

underLukumi andBlackhawk, strict scrutiny must be applied.

C. Statements and actions of the IRS alleged herein do notsurvive strict scrutiny.

Terms of strict scrutiny are stated inLukumi (508 U.S. at 546):

To satisfy the commands of the First Amendment, a law restrictive of

religious practice must advance "interests of the highest order'" and

must be narrowly tailored in pursuit of those interests.McDaniel v.

Paty, 435 U. S. [618 (1978)], at 628, quoting Wisconsin v. Yoder, 406

U. S. 205, 215 (1972). A law that targets religious conduct for

distinctive treatment or advances legitimate governmental interests

only against conduct with a religious motivation will survive strict

scrutiny only in rare cases.

Plaintiff recognizes that interests of the highest order include operating

systems of taxation and reducing burdens on the IRS. SeeHernandez v. Comm.,

490 U.S. 680 (1989) (Hernandez); U.S. v. Lee, 455 U.S. 252 (1982) (Lee);



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Autenrieth v. Cullen, 418 F.2d 586, 588 (9th Cir. 1969);Adams v. C.I.R., 170 F.3d

173 (3d Cir. 1999) (Adams);Miller v. C.I.R, 114 T.C. 511, 517 (2000).

Plaintiff also recognizes that religious belief in conflict with the payment of

taxes affords no basis for resisting the tax. (Lee, supra at 455 U.S. 260.) Plaintiff

suggests, however, that governmental interests are defined by Congress and are

subject to constraints imposed by Congress. The tax must be uniformly

applicable to all, except as Congress provides explicitly otherwise. (Id. at 261.)

Boardman submits that statements and actions of the IRS alleged herein appear to

violate constraints set by Congress that are discussed infra. Constraints set by

Congress satisfy Constitutional requirements but IRS actions that violate the

constraints also violate the Constitution. Narrowly-tailored methods that satisfy

strict scrutiny would conform to constraints created by Congress.

IRS statements and actions alleged herein are not narrowly tailored to

achieve governmental interests because suppressive techniques are apparently

triggered by religious messages rather than being based on extra expense and delay

arising from proceedings, collections and nonstandard documents. Labeling

returns that include religious statements as frivolous sets up an easy target for

suppression rather than a target that has a causal relationship with the bottom line.

In the range of tax resistance practices or delinquencies, those of religious

practitioners are minimally burdensome when returns contain correct information.



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Boardman even tells the IRS where to find the money. It appears that burdens and

expense occurred in Boardmans case because the IRS is trying through exercise of

discretion to extend procedures for dealing with frivolous protests to a taxpayer

whose refusal to pay taxes is not frivolous and who has a claim of protection under

the Constitution and Congressional Acts from such labeling and treatment.

InLukumi, supra, Cityordinances failed tests for narrow tailoring identified

as overbreadth and underinclusion. (508 U.S. 546.) Overbreadth occurs when

restrictions proscribe more religious conduct than is necessary to achieve their

stated ends. Lukumi, 508 U.S. at 538. Generally, a law which visits gratuitous

restrictions on religious conduct [citation] seeks not to effectuate the stated

governmental interests, but to suppress the conduct because of its religious

motivation. Id.

Restrictions ostensibly imposed to advance legitimate public interests are

underinclusive [if] they fail to prohibit nonreligious conduct that endangers these

interests in a similar or greater degree than religious conduct. (Lukumi, 508 U.S.

at 543.) A restriction is not justified by a general problem that causes substantial

health risks [citation] but which respondent addresses only when it results from

religious exercise. Id. at 545. The asserted interest in inspected meat is not

pursued in contexts similar to that of religious animal sacrifice. Id. at 545.



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In this case, overbreadth and underinclusion are clearly alleged. The nature

and extent of IRS targeting of religious war tax resisters has yet to be determined,

but what is most significant is the way that the IRS has extended use of the word

frivolous in disregard of Congressionally-imposed constraints. Congress has

established an exact arithmetic schedule of penalties for failure to pay taxes when

due, up to 25% of the unpaid tax. (26 U.S.C. 6651(a)(2).) If a further penalty is

to be imposed at the discretion of the IRS, it should be tethered to legitimate

governmental interests in reducing needless expense. Using the definition of

overbreadth, supra, the word frivolous is applied to proscribe more religious

conduct than is necessary to achieve [] stated ends. Religious reasons given in

attached messages are neither burdensome nor wasteful. Underinclusion is also

shown because expenses of collection from a nonpaying taxpayer are not typically

increased if the taxpayer includes a religious message with the return.

In sum, the Free Exercise Clause requires the IRS to undergo strict scrutiny

when it exercises discretion to select, punish or threaten taxpayers because of a

religious classification or because of religious practices or messages. Religion and

religious practices and messages have a unique if compacted place in American

jurisprudence, a place where selective targeting is prohibited and that is protected

by strict scrutiny. Here, the Complaint alleges that IRS selections and discretion

are being exercised against religious tax resisters who present minimal burdens to



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the system but whose messages are disfavored and who present easy targets for

suppression. Such exercises of discretion do not survive strict scrutiny.

II. The IRS Appears to Be Violating Constraints on Its Discretion inClassification, Punishment and Handling of Tax Resisters.

A. Legal standard for statutory construction.

In Chubb Custom Insurance Co. v. Space Systems/Loral, Inc. 710 F.3d 946

(2013), the court reviewed principles of statutory construction that are applicable

here (citations omitted):

In interpreting statutes, our task is to construe Congress's intent, and

to "begin, as always, with the language of the statute." unless

otherwise defined, "words will be interpreted as taking their ordinary,

contemporary, common meaning." Moreover, because words

necessarily derive meaning from their context, "[i]nterpretation of a

word or phrase depends upon reading the whole statutory text,

considering the purpose and context of the statute, and consulting anyprecedents or authorities that inform the analysis." Reviewing the

whole statutory scheme is particularly important for a law such as

CERCLA, which is a complex regulatory statute with "a web . . . of

sections, subsections, definitions, exceptions, defenses, and

administrative provisions."



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B. Prior to 1982, individual practitioners of Quaker war tax resistancewere provided with a practical accommodation.

As noted inAFSC, supra, p.2, fn. 1, some Quakers bear witness to their

beliefs by reporting the amounts as taxes owed on their annual income tax returns

but refusing to pay such amounts. Practitioners thus compel the Government to

levy in order to collect the taxes. (419 U.S. at 8.) InAFSC, employees of the

Quaker-related AFSC wanted to circumvent the compulsory system of employer-

based tax withholding and pre-payment. Employer and employees made an

arrangement where employer paid amounts due to the IRS but did not deduct

corresponding amounts from employees salaries. Then employees reported taxes

as being due and refused to pay. After the IRS levied and collected unpaid taxes

from the employees, the employer sued the IRS for a refund of taxes on grounds of

double payment. SeeAmerican Friends Service Comm. v. U.S., 368 F.Supp. 1176

(E.D. Pa. 1973). In addition to noting the arrangement, theAFSCdistrict court

granted an injunction blocking the withholding:

if plaintiffs Cleveland and Cadwallader were self-employed, they

would not be in Court seeking the relief requested The Internal

Revenue Service would then be forced to deal with them as it must

deal with any self-employed person who has refused to pay his or her

income taxes. Consequently, we do not feel that we are creating a new

problem for the Internal Revenue Service the Service has been

levying on plaintiffs' property since 1970 and has received all monies

currently due it by that process. (368 F.Supp. at 1184.)



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TheAFSCdistrict courts comment shows that Boardmans core religious

practice was recognized in the early 1970s.12 The Supreme Court reversed the

injunction inAFSCon grounds of the AIA but declined to criticize the arrangement

involving double payment or the core practice of tax resistance.

B. The Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA)included a de facto safe harbor that protects tax resisters who filecorrect returns from added punishments.

The original frivolous filing penalty statute, 26 U.S.C. 6702, was part of

the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA). Numerous

cases reviewed the penalty, concurring on principles, including the presence of a

zone of protected protest activity. Plaintiff suggests that such a zone of protected

activity was included by Congress as a partial accommodation of religious

protestors and other protestors and in light of practical accommodations for tax

resisters previously noted inAFSC, supra.

Jenney v. U.S., 755 F.2d 1384 (9th Cir. 1985) was a leading case. Quaker

plaintiffs inserted a conscience deduction on their tax return and made monetary

claims based thereon. The court held that they were properly penalized. However,

not all practices of tax protest or resistance were to be described as frivolous.

12Numerous cases show a continuing practice, e.g.,Adams, supra;Browne v.

U.S., 176 F. 3d 25 (2nd Cir. 1999) andMoore-Backman v. U.S., No. CV 09-397-TUC-RCC (BPV), 2010 WL 3342173 (D. Ariz. June 8, 2010).



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TheJenney court quoted from legislative history (755 F.2d at 1386):

In contrast, the penalty will not apply if the taxpayer shows the correct

tax due but refuses to pay the tax. In such a case, of course, the

Secretary can assess and collect the tax immediately. (S.Rep. No. 494,

97th Cong., 2d Sess. at 278.)

TheJenney court held that the penalty is applicable to a taxpayer who

claims a conscience or war tax deduction, unless the taxpayer reports the

correct amount due but refuses to pay. (755 F.2d at 1386.) The Jenneys would

not have been penalized under 6702 had they reported the correct amount due

and explained in their attached statement their refusal to pay because of their

objection to war. (Id. at 1386-1387.)

Similarly, inHudson v. U.S., 766 F. 2d 1288, 1291-1292 (9th Cir. 1985), the

penalty was not assessed on the taxpayer "for expressing [his] political, moral or

religious beliefs on [his] return ... [but] because [he] filed [a] return containing

substantially incorrect self-assessments." (Emendations in original.)

Courts in other circuits also recognize protected forms of protest for

taxpayers who file correct returns, e.g.,Kahn v. U.S., 753 F. 2d 1208, 1216-17 (3rd

Circuit 1985), mentioned supra:

So long as Emily Kahn provided the correct figures on her 1040A

form, section 6702 would not have prohibited her protest, whether

frivolous or legitimate, in a letter or other attachment. The civil

penalty statute does not prohibit her letter of protest or her notation on

the 1040A form except insofar as it reflects incorrect calculations.



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InEicher v. U.S., 774 F. 2d 27, 29-30 (1st Cir. 1985), the court stated:

Nor does section 6702 implicate First Amendment concerns, since it

penalizes only noncompliance with federal tax requirements, nottaxpayers' freedom of expression. Section 6702 does nothing to impair

plaintiff's right to express his views on federal taxes or any other topic,

so long as he does not file a frivolous tax return.

The foregoing authorities were cited inBradley v. U.S., 817 F.2d 1400 (9th

Cir. 1987). Bradley owed no tax and filed a return that contained nothing but

protests. At 817 F.2d 1404, the court held that plaintiffs Free Speech argument

did not override:

Congress's intent to reduce the administrative burden on the IRS from

handling forms which "are clearly not designed to inform the [IRS] of

the filer's taxable income and are not in processible form." S.Rep. No.

494, 97th Cong., 2d Sess. 278, reprinted in 1982 U.S. Code Cong. &

Admin. News 781, 1024.

At 817 F.2d 1404, n.6, theBradley court reiterated the other extract from S.

Rep. No. 494, 97th Cong., 2d Sess. 278 that was quoted supra in Jenney (the

penalty will not apply if the taxpayer shows the correct tax due but refuses to pay

the tax) and further stated:

However, we believe that Congress intended this language to apply

only to a taxpayer who, unlike Bradley, completely and correctly

reports the tax due by filling out the appropriate line items on his or

her tax return, thereby enabling the IRS to dispose of the matter

simply by mailing a deficiency notice to the taxpayer.



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Based on the foregoing authorities, plaintiff suggests that 26 U.S.C. 6702

established a safe harbor for protection of certain kinds of tax protest or resistance.

A taxpayer, like Boardman, who filed a correct return and who refused to pay fully

the amount due was not further penalized or labeled frivolous beca

boardman vs irs: religious freedom and war tax resistance

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