TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Friday, November 10, 2006

Supreme Court Receives First Petition Based on Murphy

Supreme_court_7 The Supreme Court has received its first petition based on Murphy v. United States, 460 F.3d 79 (D.C. Cir. 8/22/06). The case is Given v. United States, 164 Fed.Appx. 638 (9th Cir. Jan. 27, 2006).   The Supreme Court denied cert. on October 2, 2006, and the taxpayer on November 2 filed a petition for rehearing based on Murphy.  Here is the Introduction:

This Petition for Rehearing is filed pursuant to Rule 44.2 of the Supreme Court Rules and is based upon the recent decision issued in the United States Court of Appeals for the District of Columbia Circuit. The Case is titled Marrita Murphy and Daniel J. Levelle v. Internal Revenue Service and the United States of America, No. 05-5139, decided August 22, 2006.

Here is the Conclusion:

The ability to create a statutory presumption that everyone who labors for a living is in "business," therefore, a "seeker of profit" is beyond the power of Congress under the Constitution (See United States v. Gilmore, 372 U.S. 39, 44 (1963) and United States v. Romano, 382 U.S. 136 (1965)). The tax levied upon our "whole income" is, by judicial definition, a "capitaiton, or other direct, tax" imposed upon our labor (property), and it must be, according to the Constitution, apportioned to the States in accordance with Article 1, Section 9, clause 4.

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