Free Reply to Response - District Court of Arizona - Arizona

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Gregory A. Robinson Farley, Robinson & Larsen 6040 North 7th Street Suite 300 Phoenix Arizona 85014 602.265.6666 State Bar No. 003100 Attorney for Defendant Rachael McElhinney

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, Plaintiff, v. RACHEL McELHINNEY, Defendant.

CR03-344-06-PHX-MHM DEFENDANTRACHEL MCELHINNEY'S REPLY TO THE GOVERNMENT'S RESPONSE TO THE MOTION FOR DETERMINATION OF INEFFECTIVE ASSISTANCE OF COUNSEL FILED BY DENNIS POSELEY

Defendant undersigned Government's

Rachel

McElhinney, hereby to of the submits Motion

by

and this

through Reply to

her the of

counsel, Response Assistance The fact

for was that

Determination filed this by

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Ineffective Poseley.

Counsel

that

Dennis has

remains,

however,

Motion

already been denied by this Court.

As a result, this exercise

of preparing a Reply to the Response appears unnecessary as does the government's Response itself.

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First, the mere fact that Mr. Poseley or anyone else is neither an attorney nor an attorney with a specialty in tax law does not negate the fact that the arguments that he or she may advance have merit. To the contrary, Mr. Poseley has correctly

stated the fact that the government failed to comply with the requirements of the Paperwork Reduction Act. Second, we understand that the decision of the Ninth

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Circuit Court of Appeals in the case of U.S. v. Hicks, 947 F.2d. 1356 (9th Cir. 1991). While we neither adopt nor endorse

any negative or protestor type language, the concept that the federal government must comply with all of the federal laws is absolute are particularly The when a citizen's must constitutional meet the rights

impacted.

government

technical

requirements of the law, and the fact that this may require the government to put form over substance is not unusual or unique. For example, when the Miranda doctrine to is applicable, a defendant abide by the his the in

government rights. doctrine violation

uses The

its

Miranda can to

card

read

government subject Fifth

either

strictly of

or of

be

dismissal

charges In

brought the

those

Amendment

rights.

Miranda

case, the Court reversed the conviction and remanded the case
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for a new trial. The Court could have decided to reprimand or discipline defendant's the local police The officers chose for to violating that the in

rights.

Court

mandate

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applicable cases the defendant was entitled to a new trial if the police failed to provide the form-like requirements of the doctrine. Third, while the Court has already ruled on this Motion, the following section set forth in Mr. Poseley's Motion

deserved the Court's attention: This is true as the requirement to file at issue in the Hick's decision was involving the 1954 code and not the 1986. It was not until 1996, when the Commissioner added into the instructions that "you are not required....." among the notices into the instruction booklet. This notice and the other notices have never appeared on any of the forms at issue between the indictment in this case and the Defendant. At page 6. The Paperwork Reduction Act of 1995 (hereinafter sometimes "PRA of 1995") prohibits any person from being subject to any penalty regarding supplying information upon an information

collection request form unless said form displays a valid OMB control number. See 44 U.S.C. §§§ 3501, 3507, 3512. These

provisions offer "public protection" to the citizenry, who are given every reason to rely on these words of Congress. The Commissioner, in the instruction booklet for years 1999, 2000 and 2001, placed the public on notice that: "You are not required to provide the information requested on a form that is subject to the Paperwork Reduction Act unless the form displays a

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valid OMB control number." Defendant had every legal right to rely upon this statement as well as the actual provisions of the PRA of 1995. There are many violations of the Paperwork Reduction Act of

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1995 regarding Form 1040 that the United States knew about prior to attempting to deprive the Defendant of her liberty. 44 U.S.C. § 3507(g) prohibits "The Director" from approving "a collection of information for a period in excess of 3 years." The OMB # 1545-0074 has appeared on form 1040 from 1995 through 2005. Likewise, any changes to any approved form must be preapproved. See § 3507(h)(3). Changes have been made to the forms at least annually since 1995, but without the required approval.

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The forms the United States claimed Defendant was required by law to file, but allegedly did not file as "required by law" fail to comply with the PRA of 1995 for many reasons, including but not limited to the following: 1)The forms do not inform the public of the legal right for the IRS to ask the public for the information sought on form 1040;

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2)The forms do not inform the public why the IRS is asking for the information; 3)The forms do not inform the public how the IRS intends to use the information;
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4)The forms do not tell the public what could happen if the IRS does not receive the information; 5)The forms do not inform the public their response is voluntary;

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6)The forms do not inform the public their response is required to obtain a benefit; 7)The forms do not inform the public their response is mandatory under the law; 8)The forms do not inform the public of the statute giving the IRS the legal right to ask for the

information; 9)The forms do not inform the public the IRS's legal right to ask for the information under any

specific regulations or revenue procedures; 10)The forms do not contend that the IRS's legal

right to ask for the information is not subject to the Paperwork Reduction Act. The 1040 forms relevant to this case are clearly forms

subject to the PRA of 1995.
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They do not claim otherwise.

However, they also on their face fail to comply with the clear mandates of the PRA of 1995. The government's disdain for the requirements of the PRA of 1995 are nowhere made more clear than

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by the appearance of the OMB # 1545-0074 in January 2006 on the 1040A, 1040ES, 1040EZ, 1040NR, 2555 and W-4 forms. No Court has ever determined that the instruction booklets were subject to the Paperwork Reduction Act. In U.S. v. Dawes, 951 F.2d

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1189, 1191 (10th Cir. 1991) the Court, speaking of the PRA of 1980, said: "The 1040 form is the information collection request which arguably must comply with the PRA. It is through the 1040 form that the government obtains all of the tax information it requires; the instructions and the regulations do not request any additional information.............................................As such, they are not independent information collection requests subject to the provisions of the PRA." Footnote 2 of Dawes is highly instructive. There the 10th Circuit said: [fn2] In response to a question from the court during oral argument, counsel for the government indicated that the government did not have a unified federal position regarding this issue. Given the fact that the issue is one of national scope which affects the tax revenues of the United States, we find this posture regrettable.

The government has chosen to place OMB numbers on the 1040 form. The government has not given any citizen notice that it

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might claim that the form was not required to comply with the public protections of the PRA of 1995. Rather, the government has taken an ad hoc, case by
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case

approach,

tossing

out

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irreconcilable

claims

among

the

various

jurisdictions,

and

sometimes even within a jurisdiction. In Salberg v. U.S., 969 F.2d 379 (7th Cir. 1992) the 7th Circuit said:

[16] The Paperwork Reduction Act of 1980, 44 U.S.C. § 3501 et seq. (1988) (the PRA or the Act), was enacted in response to a concern that in its tireless quest for information, the federal bureaucracy was imposing an everincreasing burden on citizens and small businesses. The PRA requires federal agencies to submit all "information requests" to the Office of Management and Budget (the OMB) for approval. Information requests include "tax forms, medicare forms, financial loan applications, job applications, questionnaires, compliance reports, and tax or business records." Dole v. United Steelworkers, 494 U.S. 26, 33, 110 S.Ct. 929, 933, 108 L.Ed.2d 23 (1990). If the Director of the OMB approves the information request, the Act requires that he assign it a control number. An agency may not attempt to collect information unless it has obtained the Director's approval along with a control number to display on the information request. 44 U.S.C. § 3507. If an agency's information request does not display an OMB number, "no person shall be subject to any penalty for failing to maintain or provide information" to the agency pursuant to the request. 44 U.S.C. § 3512. Salberg and Dawes were both just after the Paperwork

Reduction Act of 1980, and long before the Paperwork Reduction Act of 1995 now in place. These cases are of no assistance in

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determining why the government would fail to make a meaningful attempt at complying with the laudable purposes and reasonable mandates of the PRA of 1995. However, these cases do make it clear that by a failure Congress to comply with the public protections altogether

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enacted

renders

criminal

sanctions

improper and untenable, where the plain language of the statute creating the public protection prevents any punishment for failing to comply with a "bootleg" form. The indictment charged a violation of 26 U.S.C. § 7203. This statute is the sole statute, or the sole statute for a listed element of the count, with respect to every count of the

complaint.
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The 1040 form relied upon as the mandatory form with respect to every count of the indictment, fails in having the mandatory disclosures on the form, although it does refer the reader to the instruction booklets. These instruction booklets for the

prosecution years, namely 1998, 1999, 2000, and 2001, say that the government's legal right to ask for the information comes from the Internal Revenue Code, sections 6001, 6011, and 6012 "and their regulations." The instructions say that these authorities "say you must file..." Defendant was indicted for violating 26 U.S.C. § 7203,

whereas the Commissioner of Internal Revenue has never suggested, on the 1040 form or on the instruction
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booklets,

that

said

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statute forms any part of the authority for a filing requirement. Therefore, it is plain that a simple comparison of the

instruction booklets and the indictment would inform a person of ordinary intelligence that the indictment did not charge a triable

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offense. Defendant was fully and absolutely protected by the PRA of 1995 from the charges in the indictment. Defendant was a member of the public and she deserved the protection the public has been granted by Congress in the

passage of the PRA of 1995. Respectfully submitted this 12th day of June 2006.

/s/ Gregory A. Robinson Gregory A. Robinson Farley, Robinson & Larsen 6040 North 7th Street Suite 300 Phoenix Arizona 85014 Attorney for Defendant Rachael McElhinney

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that service of the foregoing document, DEFENDANT MCELHINNEY'S REPLY TO THE GOVERNMENT'S RESPONSE TO THE MOTION FOR DETERMINATION OF INEFFECTIVE ASSISTANCE OF COUNSEL THAT WAS FILED BY DENNIS POSELEY has been made this 12th day of June 2006, by electronically filing the same with the United States District Court for the District of Arizona, and mailing and/or e-mailing a copy to:

The Honorable Mary H. Murguia United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 525 401 West Washington Street, SPC 53 Phoenix, AZ 85003-2154

/s/ Gregory A. Robinson Gregory A. Robinson

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