John Reply Appeals Brief

                                                               In The United States Court of Appeals
                                                                      For the Eleventh Circuit

John Patriot
    Appellant - Petitioner 

V                                                                    No.   08 – xxx

Commissioner of Internal Revenue
    Appellee – Respondent


                                                         On Appeal from the Decision of the United States Tax Court

                                                                         Reply Brief of Appellant

John Patriot
Hogansville, Georgia

Patriot v. Commissioner
                                                                               No. 08 –xxx- BB

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

1. Opposing Counsel
Mr. Curtis C. Pett, Appellate Section, Tax Div., D.O.J.
P. O. Box 502, Washington, D. C. 20044

2. There are no Corporate Entities with any interests in this case.

Table of Contents

Statement of Interested Persons
Table of Contents
Statement of the Issues
Table of Cases
Issue I: The stipulations were an unfair tool
Issue II: Handicapped petitioner needed an assistant.
Issue III: Adequate pleadings should be filed.
Conclusion
Certificate of Service

Statement of the Issues

1.The taxpayer’s response to stipulations was adequate
2.Pro se Petitioner needed assistance.
3.The Clerk’s Office should be required to file pleadings.

Table of Cases, Statutes and Authorities

I. Cases Brotherhood of Trainmen v. Virginia ex rel. Virginia Bar, 377 US 1
Wainwright, 372 U.S. 335
Argersinger v. Hamlin, Sheriff 407 U.S. 425
NAACP v. Button, 371 U.S. 415
United Mineworkers v. Gibbs, 383 U.S. 715
Johnson v. Avery, 89 S. Ct. 747 (1969)
Maty v. Grisselli Chemical Co. 300 US 197, 58 S Ct 507 (1938)
Conley v. Gibson, 355 U.S. 41 at 48 (1957)
Jenkins v. McKeithen, 395 U.S. 411, 421 (1959)
Picking v. Pennsylvania R. Co., 151 Fed 2nd 240
Pucket v. Cox, 456 2nd 233

                                                                         In The United States Court of Appeals
                                                                                For the Eleventh Circuit

John Patriot
     Appellant – Petitioner

     v                                 No.  08 – xxx- BB

Commissioner of Internal Revenue
    Appellee – Respondent

On Appeal from the Decision of the United States Tax Court

Reply Brief of Appellant, pro se

ISSUE I. INCORRECT STIPULATIONS

1. This case involves procedural defects and deficiencies of the Commissioner. The government used stipulations under the tax court rules as a weapon to browbeat the taxpayer - not to establish facts to be used in court.

2. The purpose of stipulations in any court is for the parties to agree in writing ahead of time on certain facts, generally those not disputed. If the facts are disputed or likely to be disputed, the correct procedure is to use the admission of facts.

3. In this case, District Counsel sent taxpayer pro se a list of stipulations

under Rule 91(Doc. 12, Ex. A). Several of these ask taxpayer to agree to income figures which later could be used against him in a tax evasion case. District Counsel knew very well that the taxpayer would exercise his Constitutional right and not to incriminate himself. Earlier District Counsel had sent taxpayer the same questions as admissions of fact. Taxpayer hid behind the Fifth. (gov Br. 4 and 5)

4. Everybody knows that notorious criminals and murderers have the right to remain silent. The question is whether law abiding American citizens also have that right. Do they? Was the Bill of Rights written to protect the dishonest and the murderous from the Law?

Of course not. The protections in the Bill of Rights were written to protect the citizens. The hoodlums and criminals just have an opportunity to use their rights more often. Think about it. Did George Washington and Thomas Jefferson risk their necks so bank robbers and thieves could escape the clutches of the Law? No, our Constitution was written to protect the law abiding honest citizens from the government.

5. John Patriot used his Constitutional protection just as it was intended. He used this valuable right against government oppression. For this he was punished. But the punishment was procedurally defective.

Rule 91 (a) provides that parties are required to stipulate on “All matters not privileged.” The Fifth Amendment is a champion privilege and correctly asserted by tax victim. Taxpayer set forth his legitimate basis for failing to agree to the stips in his pleadings.

6. The purpose of stipulations is for the parties to memorialize their agreements in writing. The admissions of facts are to force an agreement on contested issues. Taxpayer complied with the stipulations as his Fifth Amendment privilege constitutes compliance. He has not sought excuse from the requirements under Rule 91 because he is a pro se litigant.

7. In this case District Counsel used stipulations as a procedural weapon to punish taxpayer for exercising his Constitutional right, not to establish pre-arranged factual agreements. District Counsel did not contact petitioner, pro se ahead of time to secure any agreement. No effort was made by District Counsel to make any agreements even though he was required to do so Blacks Law Dictionary defines Stipulation: “The name given to any agreement made by …opposite sides of a cause.” “Voluntary agreement between opposing counsel.” “An agreement, admission or confession made in a judicial proceeding by the parties hereto.”

8. First, District Counsel filed his admission of facts (Doc. 10 at 2) asking questions identical to the stipulations. He did not need to use both. But the purpose of stipulations in this case was not to establish any facts but to catch a citizen self-represented in a procedural trap. The court (Doc. 15.) granted the governments motion to establish the stipulations.

ISSUE II. CLERICAL ASSISTANT

9. As well known to the government, taxpayer is handicapped and needs assistance in most matters, especially appearing in court pro se. The tax court has a policy of allowing pro se litigants to have a clerical assistant with them at the table. Taxpayer was not notified that this policy had been changed.

10. Taxpayer stated very clearly that he depended upon his administrative assistant to assist him. However, the trial judge sent the helper away without cause, notice or justification. No allegation, disturbance or disruption was made.

11. Well-paid DOJ attorney repeatedly alleges that Patriot requested his friend Harry to represent him. This is far from the truth. Not once did Patriot ask or even expect a non-lawyer to represent him. The government is basing their case on false statements.

12. To deny the citizen his helper, the government replies upon the

Groce case, 1995 WL 146954 (9th) but did not furnish Appellant with a copy of that. The Tax Division has found long ago that they can ignore all rules in all courts and all decency with impunity.

13. The majority of cases hold:

Litigants can be assisted by unlicensed laymen during judicial proceedings. Brotherhood of Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1; Wainwright, 372 U.S. 335; Argersinger v. Hamlin, Sheriff 407 U.S. 425

Further, NAACP v. Button, 371 U.S. 415; United Mineworkers v. Gibbs, 383 U.S. 715; and Johnson v. Avery, 89 S. Ct. 747 (1969) hold: Members of groups who are competent non-lawyers can assist other members of the group achieve the goals of the group in court without being charged with "unauthorized practice of law."

ISSUE III. FILING PLEADINGS

14. The trial judge ruled against Patriot because he did not file his Objection to the government’s motion to establish Stipulations. (Record page 18)However, the facts are that Patriot mailed his opposition in for filing but the Clerk’s Office did not file it. This is a common tactic of the Tax Court.

15. However, the case law uniformly holds:

"Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment." Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938) Therefore, Patriot was denied a fundamental due process right and this case should be remanded to the lower court.

15. Opposing Counsel says that taxpayer can not make a response to the Show Cause Order (gov Br.16) because he did not have proof of mailing. Well, such is not required and DOJ Tax Division does not have a single proof of mailing either. This is the government’s most ridiculous argument.

16. The case law holds: "Following the simple guide of rule 8(f) that all pleadings shall be so construed as to do substantial justice"... "The federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." Conley v. Gibson, 355 U.S. 41 at 48 (1957)

17. The government is seeking to use the procedural rules against a hapless citizen with no legal training. The courts have uniformly rejected such file tactics: Pro se pleadings are to be considered without regard to technicality; pro se litigants' pleadings are not to be held to the same high standards of perfection as lawyers. Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233

IV. Conclusion

Overpaid DOJ Attorney has proven that handicapped taxpayer was unable to protect his interest in court. He relied upon an assistant, he replied upon the Clerk’s Office to file his pleadings, and he relied upon the Trial Judge for fairness. He lost on all three.

V. Certificate of Service: I hereby certify that on this date I sent properly a copy of this brief by USPS First Class Mail to opposing counsel listed below:

Curtis C. Pett, Appellate Section, Tax Division, D.O.J. P.O.Box 502, Washington, DC 20044


___________________________________                    Date: _____________
John Patriot, Pro Se

Hogansville,  Ga.  30230
November  4,  2008
                                                                         
Mr.  Thomas  K.  Kahn,  Clerk
U. S. Court  of  Appeals  for the  Eleventh  Circuit
56  Forsyth  Street  NW, 1st Floor
Atlanta,  Georgia  30303-3174

Reference : APPEAL No. 08 – xxx - BB

U. S. Court of Appeals of the 11th Circuit

Dear Mr. Kahn :

Enclosed are one original and 6 copies of my “Reply Brief of Appellant, Pro se” “ On Appeal from the Decision of the United States Tax Court”. This non – required “Reply Brief” is sent to The Appeals Court to further clarify the Appellant’s position, and to clarify much information in this case which was misrepresented and / or obfuscated by the U. S. D.O.J representive in his “Brief For The Appellee” , dated October 20, 2008.

Two copies this “Reply Brief of Appellant, Pro se”, have been sent to Mr. Curtis Pett, Attorney for Tax Appeals, Department of Justice,