Hendrickson Contempt Motion, thread #3

[LPC]

I forgot to say this before, but I find it difficult to believe that the US would go to the trouble of getting a contempt order, and then not enforce it, which is one of the reasons that I wonder if Perseverating Pete has complied and purged himself of contempt.

[Imalawman]

I forgot to say this before, but I find it difficult to believe that the US would go to the trouble of getting a contempt order, and then not enforce it, which is one of the reasons that I wonder if Perseverating Pete has complied and purged himself of contempt.

That's my thought as well. Of course it would be something Pete would not disclose to anyone. The judge did leave a door for Pete to swallow his pride, he said that Pete could alter the jurat and file the corrected returns under protest. Hell, if it meant keeping my wife out of jail, I'd do just about anything. You've got to think Pete would care enough about his wife and kids to take advantage of that and file the goddam returns.

When faced with jail versus filing a return under protest, you'd think he'd choose the later. However, Pete never ceases to amaze me with his stupidity.

[Famspear]

The judge did leave a door for Pete to swallow his pride, he said that Pete could alter the jurat and file the corrected returns under protest.

There is case law to the effect that altering the jurat itself invalidates the return. With due respect to what the judge said (and I don't remember if he specifically said Pete could alter the jurat itself), the safer course for Pete would be to NOT alter the jurat, but instead to include a "statement 1" with the amended return explaining that he's filing under protest. (Depending on the language that Pete would use, even that might not rescue the amended return from being a nullity.)

[Cathulhu]

Famspear is correct; IRS service center personnel are told to remove altered jurat statements and send for processing with a unit that has law training rather than the drones who keypunch. By necessity, any altered jurat statement can't be done on an e-file return; it has to be paper.

Famspear, I particularly like the irony of your signature quote:...why is anyone in this [losthorizons] community paying the least attention to...'Larry Williams' [Famspear], or other purveyors of disinformation from...quatloos? ...their mission is to confuse you, discourage you, and lead you back into the pen! - Pete Hendrickson

Lead on, Pete.

[Dezcad]

The judge did leave a door for Pete to swallow his pride, he said that Pete could alter the jurat and file the corrected returns under protest.

There is case law to the effect that altering the jurat itself invalidates the return. With due respect to what the judge said (and I don't remember if he specifically said Pete could alter the jurat itself), the safer course for Pete would be to NOT alter the jurat, but instead to include a "statement 1" with the amended return explaining that he's filing under protest. (Depending on the language that Pete would use, even that might not rescue the amended return from being a nullity.)

Here are Judge Edmund's words:

If you do not file your amended
18 returns for those two taxable years and acknowledge your income,
19 acknowledge that you owe taxes on it, then, I mean, you can
20 affix something to it that says, you know, filed under protest,
21 or anything you want that says that, you know, I disagree with
22 the statement that this is taxable income.

If you want to file something along with your return
4 that states that you disagree with having to file it and that
5 you disagree that they're wages and you disagree that there are
6 taxes owed on it, append whatever you want to your return, but
7 it must be filed. They must be filed.

pgs. 6 and 7 of transcript of contempt hearing motion

[Imalawman]

The judge did leave a door for Pete to swallow his pride, he said that Pete could alter the jurat and file the corrected returns under protest.

There is case law to the effect that altering the jurat itself invalidates the return. With due respect to what the judge said (and I don't remember if he specifically said Pete could alter the jurat itself), the safer course for Pete would be to NOT alter the jurat, but instead to include a "statement 1" with the amended return explaining that he's filing under protest. (Depending on the language that Pete would use, even that might not rescue the amended return from being a nullity.)

I agree, however, all I was saying is what he has to do to avoid being in contempt - not comply fully with IRS regulations. If the judge says, "you need to do X", well then, do X, whether or not its techinically correct.

I see that the judge did not give leave to alter the jurat, only append a statement. So, this discussion is moot anyway.

[Famspear]

The Court stated:

If you do not file your amended
18 returns for those two taxable years and acknowledge your income,
19 acknowledge that you owe taxes on it, then, I mean, you can
20 affix something to it that says, you know, filed under protest,
21 or anything you want that says that, you know, I disagree with
22 the statement that this is taxable income.

[ . . . .]

If you want to file something along with your return
4 that states that you disagree with having to file it and that
5 you disagree that they're wages and you disagree that there are
6 taxes owed on it, append whatever you want to your return, but
7 it must be filed. They must be filed.

pgs. 6 and 7 of transcript of contempt hearing motion

If I were Pete, I would not make any alteration in the jurat itself, and I would not add any footnote or asterisk or anything else to the jurat. If I'm Pete and I absolutely want to say something stupid in my amended tax return, I would include a statement on a separate page at the end of the return, saying something to the effect of:

I, Pete Hendrickson, believe that my earnings received as compensation for services in an activity not connected to the exercise of a federal privilege should not be included in gross income within the meaning of section 61 of the Internal Revenue Code. However, I am aware that certain court rulings contradict my position, and I am filing this amended return to show those earnings as included in gross income as defined in the court rulings interpreting section 61.

Notice that in this precise language, Pete would not be saying that the courts are right and he is wrong -- but only that he feels his earnings "should not" be included in income -- while stating that he IS INCLUDING them in income as defined by the courts. This could be a face-saving gesture for Pete that might not invalidate the return, since he would not be altering the jurat and he would be making clear that he is following the courts' interpretation of the law.

Disclaimer: Dear Pete: I am not your lawyer or accountant. No contractual, fiduciary, attorney-client, accountant-client, or other relationship between you and me is stated or implied herein. You should consider consulting with your own tax adviser before making any decision. Batteries not included. Void where prohibited by law. Mileage may vary. Do not spindle, fold, or mutilate. Do not remove tag underneath chair. Go placidly amid the noise and haste.....

EDIT: The idea that there's a strong probability Pete Hendrickson would actually take my advice about anything...... Now, am I delusional, or what?

[Cpt Banjo]

Disclaimer: Dear Pete: I am not your lawyer or accountant. No contractual, fiduciary, attorney-client, accountant-client, or other relationship between you and me is stated or implied herein. You should consider consulting with your own tax adviser before making any decision. Batteries not included. Void where prohibited by law. Mileage may vary. Do not spindle, fold, or mutilate. Do not remove tag underneath chair. Go placidly amid the noise and haste.....

You might add: Go to jail. Go directly to jail. Do not pass Go. Do not collect $200.

[LPC]

There is case law to the effect that altering the jurat itself invalidates the return.

Yes, where the alteration undermines the promise of truthfulness and removes the possibility of punishment for perjury, which makes the return a nullity.

However, there is at least one court decision that the addition of language such as "under duress" is does NOT invalidate the return, because the statement is literally correct. Returns are required by law, and failure to file a return can be punished as a crime. The return is therefore submitted under threat of punishment.

And I think that Judge Edmonds might have been aware of that decision/distinction when she suggested that Hendrickson could alter the jurat.

I'll see if I can find a citation to the case.

[LPC]

From footnote 4 of Williams v. Commissioner, 114 T.C. 136 (2000):

We note that some courts have found that the addition of protest language to the Form 1040 will not invalidate the form as a return. In McCormick v. Peterson, 73 AFTR 2d 94-597, 94-1 USTC par. 50,026 (E.D.N.Y. 1993), the court held that the addition of the words "under protest" to the jurat did not alter the meaning of the jurat and thus did not invalidate the Form 1040 as a return. See also Berger v. Commissioner, T.C. Memo. 1996-76 (holding the addition of a disclaimer statement which declared that the return was signed "under duress by court order" did not alter the jurat in such a way as to invalidate the return); Todd v. United States, 849 F.2d 365, 367 (9th Cir. 1988) (holding that the addition of the words "signed involuntarily under penalty of statutory punishment" below the jurat did not make the Form 1040 a frivolous return under section 6702). But see In re Schmitt v. United States, 140 Bankr. 571, 572 (Bankr. W.D. Okla. 1992) (holding the addition of the words "signed under duress see statement attached" to the jurat invalidated the return).

The Berger decision seems like it might be similar to Hendrickson's case.

[wserra]

It's been a week since the last docket entry, the Sixth Circuit's denial of a stay of Judge Edmonds' contempt order. We are several days into what, in the event of non-compliance, should be incarceration. For reasons other posters wrote above, the most likely conclusion is that the Hendricksons have complied. I think there is an additional reason for that conclusion, though.

Most judges really dislike non-compliance. It directly challenges their authority. Accordingly, especially when the party that procured an injunction is the govt, judges wish to be notified in the event of violation. Perhaps, in a case between two private parties, a judge might feel, "Well, if they don't care, neither do I". That's not the case, though, if one party is the govt. I have seen a DJ excoriate a young AUSA for delaying a couple of days in reporting non-compliance. Granted, that was a criminal matter, but the idea is the same. Had the Hendricksons not complied by now, it is hard to picture the govt failing to notify the Court of that fact.