Binding Precedent

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Kestrel
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Binding Precedent

Postby Kestrel » Sun Jul 31, 2011 8:07 pm

LPC wrote:I've only gotten to contention #1 on page 6, but it's pretty much the same old crap. Cryer's crap is disingenuous in more complicated ways, but it's still crap.

I may post an exegesis if I have the time and inclination (I'm currently out of the office in my undisclosed location in the Adirondacks).

Thanks for looking at this. Enjoy your vacation. You've picked a beautiful place to be right now.

The one Cryer contention in the entire 59 pages that I'd really like to know how to refute is this one. (Your FAQs already refute pretty much everything else very, very nicely.)
In its “Truth” About publication the IRS relies on numerous inferior court cases. Inferior courts are those inferior to the Supreme Court and consist of Tax and Claims Courts, Bankruptcy Courts, District Courts and Courts of Appeal, all of which are created by Congress. The IRS acknowledges in its Internal Revenue Manual, and Truth Attack agrees with them on this point, that inferior court holdings are not law and are binding only on the parties to the suit in question, and even then, only as to the years litigated. According to the IRM only Supreme Court cases are binding on it and considered the law of the land, “equivalent to the code”.

I remember reading that the federal Courts of Appeal are courts of final jurisdiction, so that particular part of the above statement fails. I'm unsure of the rest because I'm not a lawyer. Cryer uses this "inferior court" justification to dismiss all non-SCOTUS rulings as irrelevant and/or non-applicable. If the allegation is false, all his arguments collapse.

I haven't read the Internal Revenue Manual so I don't know what it really says about binding precedent, but given Cryer's tendency to misinterpret I certainly don't take his word for it. Unfortunately for me, the Cryer-supporter in my life does.

Thanks again.
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Re: Cryer, Tommy

Postby Arthur Rubin » Sun Jul 31, 2011 8:36 pm

Kestrel wrote:The one Cryer contention in the entire 59 pages that I'd really like to know how to refute is this one. (Your FAQs already refute pretty much everything else very, very nicely.)
In its “Truth” About publication the IRS relies on numerous inferior court cases. Inferior courts are those inferior to the Supreme Court and consist of Tax and Claims Courts, Bankruptcy Courts, District Courts and Courts of Appeal, all of which are created by Congress. The IRS acknowledges in its Internal Revenue Manual, and Truth Attack agrees with them on this point, that inferior court holdings are not law and are binding only on the parties to the suit in question, and even then, only as to the years litigated. According to the IRM only Supreme Court cases are binding on it and considered the law of the land, “equivalent to the code”.

I remember reading that the federal Courts of Appeal are courts of final jurisdiction, so that particular part of the above statement fails.
I think I can answer that. The IRS, whether or not it's legal, can choose "Non-Acquiescence" with lower court decisions. This means, in effect, they won't appeal or dispute the result with respect to the named taxpayers, but they won't apply the result to any other taxpayers.
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Re: Cryer, Tommy

Postby wserra » Sun Jul 31, 2011 8:51 pm

As I've said many times, I've never practiced in Tax Court. But how is a decision of a Court of Appeals not the law in its Circuit? Whatever the IRS may recognize, judges - District, Tax, Bankruptcy, whatever - will follow it. If the IRS is dumb enough to say they don't recognize that, it sounds like like a sovrun ignoramus.

That's hard to believe. It's also yet another thing that makes Cryer sound like the pandering paytriot he is. Who gives a FF what he "recognizes"?
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Re: Cryer, Tommy

Postby Kestrel » Sun Jul 31, 2011 9:19 pm

wserra wrote:As I've said many times, I've never practiced in Tax Court. But how is a decision of a Court of Appeals not the law in its Circuit? Whatever the IRS may recognize, judges - District, Tax, Bankruptcy, whatever - will follow it. If the IRS is dumb enough to say they don't recognize that, it sounds like like a sovrun ignoramus.

That's hard to believe. It's also yet another thing that makes Cryer sound like the pandering paytriot he is. Who gives a FF what he "recognizes"?

As a practical matter I am in agreement with you. The nuances of the law are my weak point.

Does it make a difference that a key opinion relied upon is rendered in a different circuit, particularly if said opinion was never commented upon by a Court of Appeals?

I'm not trying to be difficult here. I'm dealing with a Cryer-supporter I can't avoid (family) whose fallback position is "well, that ruling doesn't apply in THIS circuit."
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Re: Cryer, Tommy

Postby wserra » Sun Jul 31, 2011 9:30 pm

Kestrel wrote:Does it make a difference that a key opinion relied upon is rendered in a different circuit, particularly if said opinion was never commented upon by a Court of Appeals?


By that description, I take it that you're talking about a trial court opinion.

Technically speaking, a trial level opinion is in fact binding only on the parties to it. That said, a trial court opinion may in fact be ironclad, if it states clearly-established law. But clearly-established law is usually set forth in appellate opinions as well.

Perhaps it would help if you were more specific. What is the "key opinion"?
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Re: Cryer, Tommy

Postby The Operative » Sun Jul 31, 2011 9:46 pm

Kestrel wrote:I'm not trying to be difficult here. I'm dealing with a Cryer-supporter I can't avoid (family) whose fallback position is "well, that ruling doesn't apply in THIS circuit."


My only comment is that simply because a decision is rendered in one circuit, it doesn't mean that a court in another circuit won't reference it to point out that other courts have reached a certain conclusion. Generally speaking, if a tax protester/denier argument is frivolous in one district court or circuit court, it is probably going to be frivolous in any other district or circuit court.
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Re: Cryer, Tommy

Postby Kestrel » Sun Jul 31, 2011 11:01 pm

wserra wrote:
Kestrel wrote:Does it make a difference that a key opinion relied upon is rendered in a different circuit, particularly if said opinion was never commented upon by a Court of Appeals?


By that description, I take it that you're talking about a trial court opinion.

Technically speaking, a trial level opinion is in fact binding only on the parties to it. That said, a trial court opinion may in fact be ironclad, if it states clearly-established law. But clearly-established law is usually set forth in appellate opinions as well.

Perhaps it would help if you were more specific. What is the "key opinion"?

By "key opinion" I am meaning whatever non-SCOTUS cases the IRS cites in opposition to frivolous tax arguments. I don't know enough about how to read case cites to tell how far up appeals went, nor which court rendered the final affirmation or denial, but at least a few of the cited cases appear to not have risen to the Court of Appeals level.

On the subject of "Wages, tips, and other compensation received for personal services are not income" (probably his biggest issue), the cases he disregards include the following:
United States v. Becker, 965 F.2d 383, 389 (7th Cir. 1992), cert. denied, 507 U.S. 971 (1993)
United States v. Sloan, 939 F.2d 499, 500 (7th Cir. 1991), cert. denied, 502 U.S. 1060 (1992)
United States v. Connor, 898 F.2d 942, 943-44 (3d Cir. 1990), cert. denied, 497 U.S. 1029 (1990)
Stelly v. Commissioner, 761 F. 2d 1113 (5th Cir. 1985), cert. denied, 474 U.S. 851 (1985)
United States v. White, 769 F. 2d 511 (8th Cir. 1985)
United States v. Richards, 723 F.2d 646, 648 (8th Cir. 1983)
Lonsdale v. Commissioner, 661 F.2d 71, 72 (5th Cir. 1981)
United States v. Romero, 640 F.2d 1014, 1016 (9th Cir. 1981)
Callahan v. Commissioner, 103 A.F.T.R.2d 2400, 2009 U.S. App. LEXIS 11342 (7th Cir. May 27, 2009)
Abdo v. United States, 234 F.Supp.2d 553 (M.D. N.C. 2002), aff‟d, 63 Fed. Appx. 163 (4th Cir. 2003), cert. denied, 540 U.S. 1120 (2004)
McCoy v. United States, 88 A.F.T.R.2d (RIA) 7116, 2001 U.S. Dist. LEXIS 18986 (N.D. Tex. Nov. 16, 2001), appeal dismissed, 54 Fed. Appx. 406 (5th Cir. 2002)
Sumter v. United States, 61 Fed. Cl. 517, 523 (2004)
Pugh v. Commissioner, T.C. Memo. 2009-138, 97 T.C.M. (CCH) 1791 (2009)
Carskadon v. Commissioner, T.C. Memo. 2003-237, 86 T.C.M. (CCH) 234, 236 (2003)
Wheelis v. Commissioner, T.C. Memo. 2002-102, 83 T.C.M. (CCH) 1543-45 (2002), aff‟d, 63 Fed. Appx. 375 (9th Cir. 2003).
Cullinane v. Commissioner, T.C. Memo. 1999-2, 77 T.C.M. (CCH) 1192, 1193 (1999)
Abrams v. Commissioner, 82 T.C. 403, 413 (1984)
Reading v. Commissioner, 70 T.C. 730 (1978), aff‟d, 614 F.2d 159 (8th Cir. 1980)

He dismisses them all with:
The cases following are all inferior court cases and, based upon the IRS's own policies and procedures set out in its Internal Revenue Manual (IRM), inferior court cases are binding only on the parties and even then only for the years in question. Thus all of these cases can be disregarded as not binding on either the IRS or the citizen.


Ironically, I DO note that only six of the circuits have cases cited for that issue, and three are them are from the 5th circuit. Cryer is in the 5th Circuit. Oh yes, if this trial of Cryer's ever happens, it's going to be amusing.
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Re: Binding Precedent

Postby LPC » Sun Jul 31, 2011 11:23 pm

Kestrel wrote:The one Cryer contention in the entire 59 pages that I'd really like to know how to refute is this one. (Your FAQs already refute pretty much everything else very, very nicely.)
In its “Truth” About publication the IRS relies on numerous inferior court cases. Inferior courts are those inferior to the Supreme Court and consist of Tax and Claims Courts, Bankruptcy Courts, District Courts and Courts of Appeal, all of which are created by Congress. The IRS acknowledges in its Internal Revenue Manual, and Truth Attack agrees with them on this point, that inferior court holdings are not law and are binding only on the parties to the suit in question, and even then, only as to the years litigated. According to the IRM only Supreme Court cases are binding on it and considered the law of the land, “equivalent to the code”.

I remember reading that the federal Courts of Appeal are courts of final jurisdiction, so that particular part of the above statement fails. I'm unsure of the rest because I'm not a lawyer. Cryer uses this "inferior court" justification to dismiss all non-SCOTUS rulings as irrelevant and/or non-applicable. If the allegation is false, all his arguments collapse.

I haven't read the Internal Revenue Manual so I don't know what it really says about binding precedent, but given Cryer's tendency to misinterpret I certainly don't take his word for it. Unfortunately for me, the Cryer-supporter in my life does.

Cryer has taken one section of the IRM out of context, and has used it to imply that the IRS somehow ignores the usual rules of law, and that he can also.

Here's the section of the IRM that I think Cryer is referring to:
Internal Revenue Manual wrote:4.10.7.2.9.8 (01-01-2006)
Importance of Court Decisions

1. Decisions made at various levels of the court system are considered to be interpretations of tax laws and may be used by either examiners or taxpayers to support a position.

2. Certain court cases lend more weight to a position than others. A case decided by the U.S. Supreme Court becomes the law of the land and takes precedence over decisions of lower courts. The Internal Revenue Service must follow Supreme Court decisions. For examiners, Supreme Court decisions have the same weight as the Code.

3. Decisions made by lower courts, such as Tax Court, District Courts, or Claims Court, are binding on the Service only for the particular taxpayer and the years litigated. Adverse decisions of lower courts do not require the Service to alter its position for other taxpayers.

Notice that no where in there does the IRM say that Circuit Court opinions are not binding precedent.

Here is part of what the IRM says about Circuit Court opinions:
Internal Revenue Manual wrote:4.10.7.2.9.4 (01-01-2006)
Court of Appeals

1. Either the taxpayer or the government may appeal decisions of the Tax Court (except for cases handle under the "small tax case procedures " ), district courts, and the Court of Federal Claims to the United States Circuit Courts of Appeals. There are 13 courts of appeals.

2. District courts must follow the decisions of the court of appeals for the circuit in which they are located. For example, the District Court for the Eastern District of Missouri must follow decisions of the Court of Appeals for the Eight Circuit. If the eighth circuit has not rendered a decision on a particular issue, the district court may reach its own conclusion on the issue or follow the decision of another circuit or district court that has reviewed the issue. Because the courts in one circuit are not bound by the decision of the appellate court in another circuit, examiners should cite to cases supporting their position from the circuit where the taxpayer resides. If the appellate court for that circuit has not taken a position on the issue, the examiner may cite to the decisions of other appellate courts or district courts to support her position.

3. Since one circuit court is not bound by the decision of another circuit, it is important to find a case from the circuit that will hear the case when citing a case supporting the position taken on an issue. If a decision on a particular issue has not been rendered in the examiner’s circuit, cite a supporting decision rendered in another circuit.

(Emphasis added)

Appeals from Tax Court are taken to the Circuit in which the taxpayer resided at the time the petition was filed in the Tax Court. The Tax Court is bound to follow the decisions of the circuit court to which the case can be appealed. See, for example, Golsen v. Commissioner, 54 T.C. 742, 757 (1970), affd. 445 F.2d 985 (10th Cir. 1971).

So, generally speaking, courts are generally required to follow the decisions of the courts to which the case can be appealed. Both the district courts and the Tax Court must follow the decisions of circuit courts, and all courts must follow the decisions of the Supreme Court. Cryer's statement (or suggestion) that circuit court decisions are not binding precedent is simply wrong.

Decisions of district courts, or other circuits, might not be binding, but should be persuasive, and so they have value even if they are not "binding." In fact, a decision by the Tax Court, by a district court, or by another circuit will often settle the issue. Most judges will follow the decisions of lower courts or other courts, even if not "binding," unless the judges think that the decisions are really not right. The IRS will sometimes continue litigating an issue even after it has lost in one or two circuits. But it usually folds after losing in three circuits.

Also, even though a decision is "binding," you can still argue that the earlier decision should be "distinquished," meaning that there are factors in your case that should lead the court to follow a different rule in your case. And you can argue that the earlier decision was wrong, and should be ignored (or over-ruled).

But frivolous arguments are, by definition, arguments that are so ridiculous, or go against law that is so well-settled, that no court is ever going to be persuaded by them.
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Re: Cryer, Tommy

Postby LPC » Sun Jul 31, 2011 11:50 pm

Kestrel wrote:On the subject of "Wages, tips, and other compensation received for personal services are not income" (probably his biggest issue), the cases he disregards include the following:

[snip citations to circuit court opinions from 6 of the 13 circuits, as well as several Tax Court cases and a Court of Federal Claims decision]

He dismisses them all with:
The cases following are all inferior court cases and, based upon the IRS's own policies and procedures set out in its Internal Revenue Manual (IRM), inferior court cases are binding only on the parties and even then only for the years in question. Thus all of these cases can be disregarded as not binding on either the IRS or the citizen.

As I pointed out in my previous message, even the IRS admits that circuit court opinions are binding on the district courts in that circuit, and there are circuit court opinions (and Tax Court opinions) holding that the Tax Court is bound by the decisions of the circuit to which the case may be appealed.

Kestrel wrote:Ironically, I DO note that only six of the circuits have cases cited for that issue, and three are them are from the 5th circuit.

One of the goals of my FAQ is to get citations to precedents from every circuit court on every major issue.

But the phrase "only six" is misleading. Once six circuits have ruled on a particular issue, the odds of a seventh circuit ruling differently is roughly zero.

Putting it differently, and ignoring the niceties of the "binding precedent" issue, once 100 judges have ruled the same way on a particular issue, what are the odds that the 101st judge will rule differently?
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Re: Binding Precedent

Postby Kestrel » Mon Aug 01, 2011 12:29 am

Thank you for using your vacation time to answer. You've clarified a lot.

So the IRM says lower courts are "Tax Court, District Courts, or Claims Court" but Cryer adds to the list (he lies) and claims the IRM says: "Tax and Claims Courts, Bankruptcy Courts, District Courts and Courts of Appeal." Why am I not surprised? This is exactly what I needed.

And contrary to his position that out-of-circuit decisions are irrelevant (a claim the Cryer-supporter threw at me), the IRM specifically directs when they are to be used! I also note your comment about the "persuasive" nature of lower court decisions and their recognized value.

But the phrase "only six" is misleading. Once six circuits have ruled on a particular issue, the odds of a seventh circuit ruling differently is roughly zero.

Oh I wholeheartedly agree. The assertion thrown at me was that if the local circuit had not taken up an issue it was free game. The fun part of refuting "wages are not income" is that this issue HAS been adjudicated in the local circuit - at least three times.

If this case he filed finally gets to trial I expect he will lose big time. I'm waiting now to see what the IRS does about his unfiled returns from more recent tax years.
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Re: Binding Precedent

Postby JamesVincent » Thu Jan 19, 2012 12:43 am

I was having a wonderful discussion with a believer on Facebook when he pulled this out of a dark orifice.

http://www.wnd.com/2007/07/42749/

Discussion ensued there as Im sure it will here.
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Re: Binding Precedent

Postby Famspear » Thu Jan 19, 2012 2:21 am

From the linked article:

The Internal Revenue Service has lost a lawyer’s challenge in front of a jury to prove a constitutional foundation for the nation’s income tax ....


False. At his trial, Tommy Cryer did not present a "challenge" in front of the jury to "prove a constitutional foundation for the nation's income tax." Indeed, if I recall correctly, he admitted in a radio interview shortly after the not guilty verdict (an interview I heard) that he was not allowed to present that kind of argument to the jury.

He [Cryer] said the free exchange of labor for compensation has been upheld as a right by the Supreme Court, but that doesn’t necessarily make the compensation income.


Correct. That does not necessarily MAKE the compensation income. But (with certain statutory exceptions not material to this discussion) the compensation resulting from the free exchange of labor IS INCOME. And no court has ever ruled otherwise.

For example, he said, the Constitution does not empower the federal government to regulate education, or employment, and agriculture....


Not exactly. The Constitution does not expressly state that the federal government may regulate these things. The Constitution does not expressly state lots of things. That does not mean that the Constitution does not empower Congress to enact laws regulating education, employment or agriculture if, for example, these activities are "in or affecting" interstate commerce.

“There are three points that are important,” he told WND. “There’s no law making the average working man liable [for income taxes]....


Baloney. The compensation received by the "average working man" is generally includible in gross income under section 61 of the Internal Revenue Code. And no court has ever ruled otherwise.

... there’s no law or regulation that allows the IRS to contend that earnings are 100 percent profit received in exchange for nothing.....


That is meaningless gibberish. The issue is not whether "earnings are 100% profit received in exchange for nothing."

and the right to earn a living through any lawful occupation ... is exempt from taxation...


Baloney. And beside the point. The federal income tax is not imposed on the "right to earn a living". It is imposed on "taxable income". The starting point for computing taxable income is "gross income" which includes compensation received through the earning of an occupation -- lawful or otherwise.
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Re: Binding Precedent

Postby Kestrel » Thu Jan 19, 2012 2:33 am

JamesVincent wrote:I was having a wonderful discussion with a believer on Facebook when he pulled this out of a dark orifice.

http://www.wnd.com/2007/07/42749/

Discussion ensued there as Im sure it will here.

Old news, I'm afraid. If you do a search of Quatloos for Cryer you'll find more than enough to slam your believer back into the twilight zone permanently.

In his criminal trial Cryer used his gift of gab to befuddle the jurors into thinking he didn't act "willfully" when he failed to file. The IRS turned right around and slapped him with an assessment for $1.7+ million in unpaid taxes and penalties. Cryer then filed suit in tax court, case #008118-09, and we're awaiting the results. Meanwhile, Cryer appeared before the Florida Supreme Court in an attorney disciplinary matter, spewing his same "show me the law" BS in defense of a tax-protesting attorney, and managed to get his client disbarred.

Dan already summed up Cryer's cases here.

For a more detailed rundown you can check out Tommy K. Cryer, Esquire, and His Fabled Victory Over the IRS
Our hero has taken $848,806.00 in taxes and incurred $870,630.71 in penalties, for a total of $1,719,436.71 due and owing, but he has not been thrown in jail, so it is a great victory. A few more victories like this and he could owe real money.
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Re: Binding Precedent

Postby JamesVincent » Thu Jan 19, 2012 4:15 am

Kestrel wrote:
JamesVincent wrote:I was having a wonderful discussion with a believer on Facebook when he pulled this out of a dark orifice.

http://www.wnd.com/2007/07/42749/

Discussion ensued there as Im sure it will here.

Old news, I'm afraid. If you do a search of Quatloos for Cryer you'll find more than enough to slam your believer back into the twilight zone permanently.

In his criminal trial Cryer used his gift of gab to befuddle the jurors into thinking he didn't act "willfully" when he failed to file. The IRS turned right around and slapped him with an assessment for $1.7+ million in unpaid taxes and penalties. Cryer then filed suit in tax court, case #008118-09, and we're awaiting the results. Meanwhile, Cryer appeared before the Florida Supreme Court in an attorney disciplinary matter, spewing his same "show me the law" BS in defense of a tax-protesting attorney, and managed to get his client disbarred.

Dan already summed up Cryer's cases here.

For a more detailed rundown you can check out Tommy K. Cryer, Esquire, and His Fabled Victory Over the IRS
Our hero has taken $848,806.00 in taxes and incurred $870,630.71 in penalties, for a total of $1,719,436.71 due and owing, but he has not been thrown in jail, so it is a great victory. A few more victories like this and he could owe real money.


Yeah well... I bandied words back and forth a little, told him he was a moron, referred him to the FBoP website for some of the more famous TPs and TDs and sent him to Dan's FAQ website and said see ya. Dont have time to argue stupid.
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Lift me up and help me to fly away,
Lift me up!

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Re: Binding Precedent

Postby wserra » Thu Jan 19, 2012 12:32 pm

James - it's WorldNutDaily. You might as well try to parse David Icke.
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