It could be argued that in JJeffrey cases the focus of the "fundamental interest" inquiry shifts as well, from the activity affected by the substantive law to the activity curtailed by the penalty. One Jevfrey Court case arguably supports such coen analysis. In Skinner v. Oklahoma, U. Unless, however, the basic right to physical liberty is not to be deemed "fundamental," Skinner's apparent indication that the nature of the penalty or imposition may invoke strict scrutiny for purposes of equal protection analysis is simply incompatible with more recent cases such as United States v. Batchelder, U. See also United States v.
Shepard, F. Skinner would probably be decided the same way today on "rational basis" analysis under the equal protection clause, see Williams v. Illinois, U.
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Wade, U. Connecticut, U. Requirementx seems unlikely that requiremdnts scrutiny of the classification of punishments or impositions on the basis of "fundamental interest" analysis has any place in modern equal protection law. The most recent occasion involved the very statute at issue here. United States, supra, S. See also Colkateral v. Indiana, U. Cady, U. Herold, U. Jackson, F. Ecker, F. Brown, F. Harris, supra, F. Other federal optioons courts and state supreme courts have done the same. See Harris v. Ballone, F. Florida, F. Chavez, P. Delaware, A. Kearns, A.
Nor does the statute involve a "suspect class. Doe, U. It is hard to see why the federal legislature would have a particular "deep-seated prejudice" against individuals who are tried within requiremenrs District of Columbia. The Court has further requiremens that "most of the classifications that we have recognized as suspect Richardson, U. Commission of an act resulting in criminal prosecution in the District of Columbia is hardly an collatreal or immutable attribute. Finally, the Supreme Court has said that the "suspect class" designation applies to groups that "have historically been 'relegated to such a position of political powerlessness as to command extraordinary protection reqirements the majoritarian political pug.
Doe, optionss, U. Rodriguez, U. Appellant asserts this to be applicable, on the assumption that the group affected by the statute consists of residents of the District of Columbia, who cannot vote in federal elections. That is not, however, the case, since the legislation applies to all individuals, wherever resident, tried within the District. This group consists Jefrrey of those who commit crimes within the District, a option within which some of the assertedly Jsffrey powerless District residents are likely to requirfments included, but opptions which requirementss residents of other states, oprions Virginia and Maryland, are likely to be included as well--and within which the most politically powerful members of society are particularly likely to optuons included.
Kelly, F. Ehrlichman, F. United Cohhen, Jeffrey cohen put options collateral requirements F. Moreover, even if one accepts the thesis that the class in collatedal is residents of the District Jeffrdy Columbia, the mere lack of the Jeffrey cohen put options collateral requirements does not establish political powerlessness, or, if it does, political powerlessness alone is requiremwnts enough for "suspect class" status. Minors, for example, are not a suspect class. Williams v. Requirmeents of Lewiston, F. It is, in any event, fanciful to consider as "politically powerless" a city whose residents include a high proportion of the officers of all three branches of the federal government, and their staffs.
The notion that the residents of the District of Columbia constitute a "suspect class" formed an alternate ground for application of strict scrutiny by a panel of this court in United States v. Thompson, F. That notion in particular, and the broader proposition that disparate treatment of District of Columbia defendants must be supported by more than mere "rational basis" justification, was implicitly but clearly disapproved by the Supreme Court in Swain v. Pressley, U. That case involved a challenge to D. One of the grounds of challenge was an equal protection claim which had been accepted by this court in a companion case that had been consolidated with Pressley but that had been vacated and remanded before Pressley was decided.
See Palmore v. Superior Court of the District of Columbia, F. The Supreme Court said: The Court below in Palmore These persons must assert any collateral attack on their convictions before Art. I judges, whereas persons convicted under general federal law are allowed to attack their convictions before Art. III judges. But precisely the same classification is made with respect to the original trial and appeal process, which we have already held constitutional. Palmore v. United States, U. It is certainly reasonable to make the same classification for collateral-review purposes as for purposes of trial and direct review.
A rational basis for the classification is found in the purpose behind the Court Reform Act. Counsel before us in Palmore had addressed, and we had considered--with extensive citation to Thompson--the argument similar to that raised by appellant here, at least at the en banc stagethat federal defendants in the District cannot be treated differently from federal defendants elsewhere solely on the basis of the particular code under which prosecution is brought. The Supreme Court's rejection of the equal protection claim on a mere "rational basis" analysis seems to us a considered rejection of Thompson 's assertion that provisions uniquely applicable to the District demand a higher degree of scrutiny.
Variants of that review standard have thus far been applied to classification by sex, Craig v. Boren, U. Lalli, U. Doe, supra. See Trimble v. Gordon, U. On that basis, the present legislation does not qualify, since we find it totally devoid of those characteristics invoking strict scrutiny. III We turn, then, to the merits of the matter, applying the requirement that in order for the statute to survive an equal protection challenge, the different treatment accorded federal defendants acquitted by reason of insanity within the District of Columbia and those acquitted on such grounds elsewhere, must have a "rational basis. The problem of legislative classification is a perennial one, admitting of no doctrinaire definition.
Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind The legislature may select one phase of one field and apply a remedy there, neglecting the others The prohibition of the Equal Protection Clause goes no further than the invidious discrimination. Williamson v. Lee Optical Co. Accord, Califano v. Jobst, U. We proceed to discuss in detail the elements that make the legislative distinction here under attack an eminently reasonable one.
The assertion that Congress acted irrationally when, in enacting mandatory commitment procedures applicable to the District, it "failed to act nationally to achieve the same purpose," Appellant's Brief for the En Banc Court at 17, totally ignores the substantial concern of federalism. It would be enough, for purposes of "rational basis" analysis, merely that that factor could have underlain the congressional reluctance to legislate more broadly. Fritz, U. Nestor, U. Maryland, U. In the present case, however, we need not rely upon a mere assessment of plausible reasons. Congress has on a number of occasions considered providing for the commitment, nationwide, of federal defendants acquitted on grounds of insanity.
The Committee recognizes that the Federal government is one of specifically enumerated powers. State governments, on the other hand, may act in any given area unless specifically prohibited by the Constitution. Commitment and treatment of the mentally ill has traditionally been left to the states pursuant to their parens patriae or general police power. The Federal government has no such authority.
Moreover, such a procedure could constitute a precedent for further Federal involvement in the care of the mentally ill. Once the Federal Government takes on the task of caring for the dangerously mental [sic ] ill that become involved in the Federal criminal system, Congress would most likely be asked to expand the Federal role even further. For example, legislation might be proposed allowing the Federal Government to take over State mental health institutions, or to accept the transfer of those incarcerated there, when the State is allegedly not doing a satisfactory job.
The Committee thus believes that the care of the mentally ill is a task that uniquely belongs within the parens patriae powers of the States.
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If we were reviewing this aspect of the legislation as though it were merely the rule of a federal agency, we could hardly ask for a clearer and more persuasive statement of basis and purpose. Special Concern for the District of Columbia Even if a nationally uniform law on the present subject were not regarded as treading upon the prerogatives of the states, there would still be special reason for Congress to enact such a law in the District of Columbia and not elsewhere. Its responsibility for the general welfare of the citizenry in that location is especially grave because it is not shared. See Neild v. District of Columbia, F.
And even if the responsibility were nationally uniform, there would be special reason to exercise that responsibility with regard to confinement of the insane prone to criminal acts within the Nation's Capitol. Recent events demonstrate, if any demonstration is needed, that the attraction of the mentally disturbed to politically prominent figures is a strong one. Hinckley, F. The same concern for the welfare of its officials that induces the United States to assign protective personnel to particular persons and to particular buildings within the District also reasonably reflects itself in special steps to control the criminally insane in this location.
The commitment procedures challenged in this case have been imposed under that constitutional grant which authorizes the federal government " [t]o exercise exclusive Legislation in all Cases whatsoever, over such District I, Sec. Appellant's position amounts to the assertion that when the federal government has done as much as it can to achieve a particular goal through the exercise of this branch of its powers, it must yet further justify, under the Equal Protection Clause, its failure to pursue the same end under its other powers. We know of no authority for such a proposition and believe that the law is quite to the contrary. Achieving a particular legislative goal through the exercise of a single legislative authority is almost the paradigm of the "one step at a time" approach approved by Williamson v.
For example, modern antidiscrimination sanctions were first imposed upon employers within reach of the federal government's war power, see, e. Order No. Secretary of Labor, F.
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V ; Fitzpatrick v. Bitzer, U. At none of those stages was it, to our knowledge, contended--and it was certainly never Jetfrey the failure Jeffery impose similar restrictions, for purposes of achieving the same policy, upon other employers within the reach of other federal powers constituted a denial of equal protection of the laws. Such a proposition would eliminate one of the major devices for achieving gradual reform, for the pattern described with respect to the civil rights laws has been followed in other fields as well--for example, minimum wage legislation. Compare Act of June 19,ch.
V establishing a national minimum wage for all employees in interstate commerce.
In other words, in a sense the Constitution itself establishes the rationality of the present classification, by providing a separate federal power which reaches only the present group. As the Supreme Court has said in rejecting equal protection challenges to legislation affecting a group which unlike District residents might otherwise qualify as a "suspect class": Antelope, supra, U. Mancari, U. So also here. Just as one need not inquire whether a soldier is so distinctively situated that it is rational to impose upon him prohibitions not extended, under other constitutional powers, to the citizenry at large; or whether the interstate enterprise is for the relevant purposes different from the local employer who may be reached under other constitutional grants; or whether consumer protection provisions imposed upon merchants within the District of Columbia must rationally be imposed, under the commerce clause, upon merchants elsewhere; so also in the present case, there is no doubt that the treatment of individuals acquitted on grounds of insanity in criminal trials within the District of Columbia need not be extended to defendants similarly acquitted in federal trials elsewhere.
I concur in Judge Scalia's scholarly analysis for the court. I write only to call attention to a different and simpler analysis of the situation confronting Congress which supports the result reached. Congress was presented here with a situation where no matter which choice it made, there optoons be a possible claim of denial of equal protection, and each alternative claim would appear to be of equal stature. If Congress had chosen to make the insanity procedure uniform throughout the federal courts in all 51 jurisdictions, as the appellant contends should colkateral been done here, then Collzteral would have given all Jeffrey in the federal courts equal protection, but it would have created a difference in the protection accorded law violators in the District of Columbia, depending on whether they fell into the hands of the District or the United States court system.
On the other hand, if Congress acted as it did, making a rule for the federal courts in the District of Columbia which is consistent with that of the local court system of the District of Columbia, so that law violators in the District of Columbia are treated identically no matter into which court system they may fall, then Congress arguably created a denial of equal protection between defendants in the federal courts in the District of Columbia and defendants in the federal courts of the 50 states. Congress chose to do the latter, and I think its choice should be upheld. There are many state crimes which are not ordinarily federal offenses, but which are made federal offenses if committed on federal reservations.
Similarly, the penalties, etc. This has the result of affording intrastate equal treatment to offenders in New Mexico or in Alaska, but creates an interstate difference between offenders brought into the federal courts in New Mexico and Alaska, since the Assimilative Crimes Act incorporates divergent state statutes. The choice Congress made thus assured equality of treatment among all of the offenders in New Mexico and among all of the offenders in Alaska, although there will be a difference between the laws applicable in the two states when offenders are brought before a United States district court in each state.
Another extremely happy client had his case resolved today.
Fortunately for this client, when the IRS asked for records pptions receipts, we had them. Jeffre spent a few days gathering background documents and speaking with Department of Revenue cohne. Two more clients in the past two weeks were extremely happy to have had their cases put into Currently Not Collectible status with the IRS. Even though they still owe the past due tax, the IRS will not be demanding or looking for any payments for an indefinite time. It was our job in these cases to convince the IRS that the clients simply did not have the funds to pay the back taxes while also paying their normal living expenses.
Despite published numbers showing that IRS audits are down this year, we are seeing an increasing frequency of problematic audit cases. Many of these are cases where the original accountant did a questionable job or is no longer around.
Some are returns that were prepared by the taxpayer himself or the business itself, or without good accounting advice. Although we do not prepare returns, we are defending taxpayers against Internal Revenue Service proposed assessments that suggest there was unreported cash, or underreported income, or unsubstantiated or even fraudulent deductions. This is always a challenge, and the IRS appears to be getting better at detecting which tax returns will yield the most back taxes in an audit. We recently settled a Tax Court case of the eve of trial. Some of this was due to the client filing a very late return, and much of it was due to the complexity of the return.
Poor customer service at the Internal Revenue Service is a given, and it is approaching unacceptable levels. It Jeffrey cohen put options collateral requirements no secret that I blame Congress for all of these problems. Click here for a link to a New York Times article describing some recent developments and challenges being experienced by the IRS and taxpayers. In the past few weeks, we have settled two separate Tax Court cases with the clients each ending up owing nothing to the IRS. This is further proof that if you have a good case, it is worth pursuing.
Even if the IRS continues to be understaffed and frustrating to deal with, they have attorneys who are reasonable and cooperative when a case is handled correctly. Most of us have heard about the intimidating and threatening phone calls from criminals who threaten to have the call recipient arrested if they do not send money electronically within a few hours. Now we have discovered a somewhat different version, in which the scammer sends a letter to a taxpayer who has a recorded tax lien, demanding the taxpayer call them. If a person is not familiar with IRS notices and forms, this threatening letter certainly looks official. I of course called the number, and the cheesy, boiler room atmosphere was easy to detect.
Lesson to all: Did you know that a husband or wife can petition the Internal Revenue Service for Innocent Spouse status while still married? Although the great majority of these cases involve a divorced couple, a spouse who had no knowledge of or participation in a transaction of the other spouse that results in unpaid tax can get this type of relief. We have also just discovered a way to formally request it while a Tax Court case is ongoing. Please call us if you think that you or your spouse might be in such a situation. We had a very successful resolution of a complex employment tax audit last week. The client retained us to file an appeal, and we also attended the appeals hearing.
This is a perfect resolution for a person or business that cannot pay back taxes, but, for one reason or another, does not qualify for an Offer in Compromise. This has been a big week for our firm and a couple of our clients. Although the two cases are very different, the key is to understand what the IRS is unhappy with, if possible, and to convince them that the client will be very cooperative in the future. April There are several variations of participation in the program, which is geared toward giving the taxpayer assurance that he will not be criminally prosecuted for failure to disclose foreign or offshore bank accounts and assets.
Although the IRS is understaffed in many departments, they continue to emphasize their intention to put long term FBAR non-filers into jail. Using a legal argument based on the statute of limitations, Mr. So far this year, Mr. This gives the client breathing room, and comfort that their business, assets, and wages will not be seized. Although it is not easy to get into this category with the IRS, if the numbers and financial statement support it, the monthly payment can be brought down to zero. Over a year ago the Georgia Department of Revenue seized yes, they simply took the money!
When the Department refused to listen to our argument that our client had nothing to do with it, our firm filed a lawsuit on her behalf against the Department of Revenue. Just before going to a full trial, Mr. Cohen and a firm partner negotiated a settlement with the State of Georgia in which they gave half of the money back to our client. In this case the ex-wife client did sign the tax return, but we were able to prove that she was unaware of many of the items of unreported income and unsubstantiated deductions. We just finished up an audit of a business by the IRS.
Because the client was able to retrieve a large volume of its records and banks statements, and we got them in very good order for the Revenue Agent, the IRS conceded 90 percent of the proposed tax. Not every audit of businesses and individuals has such good results although we have on occasion secured additional refunds when the records are availablebut taxpayers should not fear a letter from the IRS telling them that their return has been selected for examination. Our client was abused by the ex-spouse, left the house, and never even signed a tax return.
The IRS never relented, and the client decided to have her day in court. The judge held that indeed no joint return was filed, and the client therefore was not liable for the large amount her ex-husband owed from his tax return. The lesson in this case, as in so many, is that just because the IRS takes a position, and sticks to it, does not mean they are right. October As the government shutdown finishes a second week, we are seeing and hearing of several tax related emergencies. One new client in particular had his wages levied by the IRS just before the shutdown, and there is literally nobody that we can call or fax to attempt to get the levy lifted. This is a process that can sometimes take as little as two days, yet this unfortunate man who owes much less than the levy suggests he does has to suffer because certain Congressmen are throwing an ego tantrum.
The National Taxpayer Advocate is also out of work, so neither we, nor our Senatorial contact, has anyone to call on to break through the nightmare. Please call our office if you are experiencing problems due to the shutdown, and we will try to advise you. September When our firm represents clients in an IRS matter, we submit a power of attorney, and the IRS is required to contact us, rather than the taxpayer, whenever they need to discuss the matter. A recent IRS report has confirmed that this happens regularly, and that they may try to remedy their mistakes. As always, I recommend to our clients that they never talk to an IRS agent who calls or comes by their house or business they should just get their name and number, and tell the Revenue Officer to contact me!
August Audits are up and going higher! The IRS has long known that they make good money, and have a winning record, when they audit taxpayers. Now, in a recent IRS reportthey have announced that they will increase their use of the Correspondence Audit. This type of audit is handled by mail, and can result in complications and injustice if not handled promptly and correctly. We just finished a Tax Court case in which our client won a percent victory! The client operates two different businesses, and after an audit of two years the IRS assessed him with a very large tax bill. This case is also a wonderful example of a taxpayer keeping excellent records, and not giving up when the IRS wins the first round.
For those of you who have recently filed, or plan to file, an Offer in Compromise, the news is good: As you may be aware, because of a change in regulations last year, our office has filed many more Offers than we have in years, and have experienced a significant increase in accepted Offers. This is encouraging, and we will continue to file Offers for clients who appear to be good candidates for this program. Unlike the tax resolution companies that advertise incessantly on TV, we will only submit an Offer for you if you appear to qualify under the IRS formula. However, if you were one of the 3 million people who were subjected to one of these, it was not good news.
So many people are shocked to learn that if one of their debts is cancelled or forgiven, it will be considered taxable income by the IRS. If your house is foreclosed, a credit card debt is reduced, or a business loan is uncollectible, the taxpayer may receive a Form C in the mail from the creditor. That seems to be one of the drawbacks. In fact, I'd prefer to do just the opposite of what you are suggesting. In practice, indexes are less volatile than individual stocks some stocks move up, others down, negating part of the volatility. Thus, selling naked options or spreads on an index is less likely to result in a loss than selling options on individual stocks.
In return for that reduced volatility, you collect a lower option premium. By buying puts or calls on individual stocks, you are hoping for a major news announcement and thus a big change in the price of the stock. I've never tried this, but it's a strategy that has supporters. Cohen is suggesting you do just the opposite. I do not like to try to pick stocks that will out- or under-perform the market. By doing 'some research' your strategy requires just that. Thus, it's not for me. But is it for you? Is the purpose of this strategy to sell puts in stocks you are willing to own?
Is it based on the premise that you have the ability to pick winning stocks? The idea is to prosper by having your stocks outperform the market.