UNITED STATES TAX COURT

John Henry Ryskamp, No. 006595-19

Petitioner,

vs. MOTION FOR SUMMARY JUDGMENT

Commissioner of Internal Revenue,

Respondent.
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There is only one issue in this case, and it is a legal issue: the legal nature of the Notice.

Thus, the petition is amenable to summary judgment adjudication. The question for the Court is

this:

Is the Janus agency “fee” a tax?

If it is, many important consequences follow.

I. THE TAX SYSTEM OF THE UNITED STATES IS UNCONSTITUTIONAL

UNDER JANUS v. AFSCME

The tax system of the United States is unconstitutional under Janus v. AFSCME because

it is unconstitutionally compelled speech.

The Janus Court found that there is an individually enforceable protected speech

component of taxation—this is the fundamental holding of the case. Since the compelled speech

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was unconstitutional, the Janus tax (the agency “fee”) was unconstitutional. Also, the Court found

that the agency “fee” legislated for the general welfare.

Finding the speech component of taxation, opened up the basis of the Federal tax system

to many Constitutional objections. In fact, the tax system of the United States is the tax scheme

in Janus—there is no difference. This is what so disturbed Justice Kagan. In her view, as long as

an exaction could Constitutionally be labeled a tax, it should not be subject to a speech objection,

because doing so necessarily exposes the tax system of the United States to a finding that it is

unconstitutional.

In the Court’s view, the Janus “fee” does not play the role of a fee—exacting a sum from

members of a group to pay for a service provided to that group—but is, flat out, a prohibited tax

through which, in fact, the State of Illinois brings about general welfare results. It is a scheme

which encompasses not only compulsion, but also, results. So much for the scrutiny regime, in

which the issue is, who decides?—and that is what upsets Justice Kagan most of all. As she says

in her dissent, finding an individually enforceable speech component in taxation means that the

law is now about “who should prevail.” Slip op. at 27.

Here it is appropriate to note what the Supreme Court says characterizes individually

enforceable rights, that is, facts which enjoy a higher level of scrutiny than minimum scrutiny. In

West Virginia v. Barnette, the Court says that such facts are “removed from the vicissitudes of

political controversy, to place them beyond the reach of majorities and officials, and to establish

them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free

speech, a free press, freedom of worship and assembly, and other fundamental rights may not be

submitted to vote; they depend on the outcome of no elections.” That is exactly what happens to

the general welfare in the Janus tax scheme. Justice Kagan correctly says that the result of the

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Court finding that the agency “fee” is a tax and is unconstitutional, is to establish new individually

enforceable rights with respect to facts which previously were assumed to be under the control of

the political system: “it prevents the American people, acting through their state and local officials,

from making important choices about workplace governance. And it does so by weaponizing the

First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic

and regulatory policy.” Slip op. at 26.

As the Supreme Court says in National Federation of Independent Business v. Sebelius,

the “essential feature of any tax” is that it “produces at least some revenue for the government.”

Slip. op. at 33. Justice Kagan, in her Janus dissent, notes that the Janus “fee” is “levying a tax to

support collective bargaining” (Slip op. at 15). More specifically, it is withheld by the State from

paychecks and then paid by the State to the union. It is a tax under Sebelius.

The Janus agency “fee” tax is no different from any other tax. Of course, Justice Kagan

claims: “[T]he key point about today’s decision is that it creates an unjustified hole in the law,

applicable to union fees alone. This case is sui generis among those addressing public employee

speech—and will almost surely remain so.” However, that has not happened, and neither her

characterization nor what she claims are the consequences, are accurate, as is shown below.

Nowhere in the case does the Janus Court limit the tax implications of the case; nor does the Court

indicate that there is any principled way of distinguishing taxes which contain a forbidden

protected speech component, from those which do not. Justice Kagan does note that “Today is not

the first time the Court has wielded the First Amendment in such an aggressive way….And it

threatens not to be the last.” Slip op. at 27. So there is no reason, either in the Janus case itself or

in the Court’s use of protected speech, to consider the Janus “fee” a “hole in the law.” Nor does

she herself distinguish this “hole” from other taxation.

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 There is nothing in the Court’s opinion to suggest—and there is no principled way of

determining—that the finding of an individually enforceable speech indicium in taxation qua

taxation, is in any way restricted to public employees in the agency fee context, or to the States.

For the Court, the finding of an individually enforceable protected speech component of taxation,

is the overriding principle. The import of Janus is that various transactions, mirages, fronts, straw

men, proxies, public employees as distinguished from private employees, unions as distinguished

from government, and so on, must be seen through and the Court must identify the

unconstitutionally compelled individually enforceable protected speech component of taxation.

Indeed, the Court goes out of its way to point out that in holding that there is an individually

enforceable protected speech component of taxation, it is enunciating a general principle

applicable to all speech in the context of taxation: “Compelling individuals to mouth support for

views they find objectionable violates that cardinal constitutional command, and in most contexts,

any such effort would be universally condemned.” Slip op. at 8. Taxation, the Court makes clear,

is not one of those excepted contexts. Compelled speech and taxation are one and the same and

that is why the United States tax system is unconstitutional. Justice Kagan understands this

perfectly well, as she says below. She also understands the flip side, that, just as there is a speech

component to taxation, there is a tax component to speech—that is, taxation by its nature effects

certain results. These are general welfare results, which, as she notes, are now elevated to

individually enforceable rights.

II. SECTION 6330 AND THE TAX COURT ARE UNCONSTITUTIONAL UNDER

JANUS V. AFSME

Finding the individually enforceable protected speech component of taxation in the context

of the agency “fee,” lays bare the unconstitutional nature of the United States tax system, including

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the Tax Court. The Tax Court handles only tax matters; therefore, as part of the unconstitutional

tax scheme of the United States, the Tax Court is itself unconstitutional—the Tax Court has no

other basis in law besides the unconstitutional tax scheme. The Tax Court is part of an

unconstitutional scheme.

The agency “fee” process of assessment and protest is entirely parallel to the provision of

Section 6330, further demonstrating that the Janus agency “fee” is a tax. Indeed, the Janus scheme

may just as well have been modeled on Section 6330. As the Janus Court relates: “After the

amount of the agency fee is fixed each year, the union must send nonmembers what is known as a

Hudson notice….This notice is supposed to provide nonmembers with ‘an adequate explanation

of the basis for the [agency] fee….’ If nonmembers ‘suspect that a union has improperly put

certain expenses in the [chargeable] category,’ they may challenge that determination.” Slip op.

at 4. This is why my petition says that the Hudson notice is a Notice of Determination: both

documents play identical roles in identical unconstitutional tax schemes. In a scheme in which, as

here, there is an unconstitutional tax based on unconstitutionally compelled speech, the union is

the delegatee and proxy, serving for Constitutional purposes as the government, for both setting

and assessing the tax.

Note that the assessment is called a determination, as it is under Section 6330 procedures.

The Janus assessment and challenge process was, of course, thrown out along with the agency fee.

And so, in the present case, a Notice of Determination cannot be the predicate for the Tax Court’s

jurisdiction, because Section 6330 is unconstitutional, because the United States tax system is

unconstitutional. Taxation has an individually enforceable protected speech indicium, per Janus,

and where, as here, the Constitutional impairment is compelled speech, the Tax Court finds its

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jurisdiction in due process, and the Notice in the instant case serves as evidence of an

unconstitutional tax assessment.

The tax system fails on other grounds as well. As Justice Kagan notes, when the Court

finds an individually enforceable protected speech component in taxation, that makes “a ‘federal

constitutional issue’ out of basic ‘employment matters, including working conditions, pay,

discipline, promotions, leave, vacations, and terminations.’” Slip op. at 16. In short, the level of

scrutiny for taxation must rise, because the general welfare has been raised in its level of scrutiny.

The distinction does not exist between direct government taxation and taxation through supposed

proxies, such as unions. The Janus Court shows that the agency “fee” effected general welfare

results in every area of policy which government has traditionally influenced through tax-and-

spend—the Janus setup was government legislating for the general welfare, and the Court does not

distinguish—nor is there any principled way of distinguishing—the Janus set up from legislating

for the general welfare on the part of the United States Government or any other governmental

entity. The entire Janus scheme was not only policy-making, but also results:

In addition to affecting how public money is spent, union speech in collective bargaining
addresses many other important matters. As the examples offered by respondents’ own amici
show, unions express views on a wide range of subjects—education, child welfare, healthcare, and
minority rights, to name a few. See, e.g., Brief for American Federation of Teachers as Amicus
Curiae 15–27; Brief for Child Protective Service Workers et al. as Amici Curiae 5–13; Brief for
Human Rights Campaign et al. as Amici Curiae 10–17; Brief for National Women’s Law Center
et al. as Amici Curiae 14–30. What unions have to say on these matters in the context of collective
bargaining is of great public importance.

Take the example of education, which was the focus of briefing and argument in Friedrichs. The
public importance of subsidized union speech is especially apparent in this field, since educators
make up by far the largest category of state and local government employees, and education is
typically the largest component of state and local government expenditures. Speech in this area
also touches on fundamental questions of education policy. Should teacher pay be based on
seniority, the better to retain experienced teachers? Or should schools adopt merit-pay systems to
encourage teachers to get the best results out of their students? Should districts transfer more
experienced teachers to the lower performing schools that may have the greatest need for their
skills, or should those teachers be allowed to stay where they have put down roots? Should teachers

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be given tenure protection and, if so, under what conditions? On what grounds and pursuant to
what procedures should teachers be subject to discipline or dismissal? How should teacher
performance and student progress be measured—by standardized tests or other means?

Unions can also speak out in collective bargaining on controversial subjects such as climate
change, the Confederacy, sexual orientation and gender identity, evolution, and minority religions.
These are sensitive political topics, and they are undoubtedly matters of profound “‘value and
concern to the public.’” Snyder v. Phelps, 562 U. S. 443, 453 (2011). We have often recognized
that such speech “‘occupies the highest rung of the hierarchy of First Amendment values’” and
merits “‘special protection.’” Id., at 452.

Slip op. at 29-31. My emphasis.

In short, the Janus setup affects general welfare results: the entire scheme legislates for the general

welfare; it is not simple advocacy or policy: it is advocacy, policy and results. It is government.

In Janus, the Government simply effected its results through collective bargaining. Attempts to

segregate the players is unavailing where, as here, there is unconstitutional taxation based on

compelled speech. It is hopeless to try. As Justice Kagan says, “Speech is everywhere—a part of

every human activity (employment, health care, securities trading, you name it). For that reason,

almost all economic and regulatory policy affects or touches speech. So the majority’s road runs

long.” Slip op. at 27-28.

Congress may “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and

provide for the common Defence and general Welfare of the United States.” U. S. Const., Art. I,

§8, cl. 1. Put simply, Congress may tax and spend for the general welfare. However, it may not

Constitutionally legislate for the general welfare. Because the United States tax system has an

individually enforceable protected speech component, and that speech is compelled, and so the tax

system is unconstitutional, Congress legislates for the general welfare, in violation of the

Constitution. Thus, it is also a Fifth Amendment due process violation.

III. REFUND OF TAXES PAID IS MANDATED UNDER JANUS V. AFSCME, AS IS

THE MAINTENANCE OF THE GENERAL WELFARE

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 Thus, the Tax Court has jurisdiction, and must rule that the assessments and the notice in

the present case, are void and invalid because the United States tax system is unconstitutional.

There is also relief to be granted. Far from what Justice Kagan predicted, the reach of Janus has

expanded. It now encompasses refund of agency fees (see Supreme Court Docket number 18-

1120, Riffey v. Pritzker). Nor is there any principled way of determining that formerly paid taxes

are not refundable for a protected speech violation; there is no qualified, governmental, or any

other immunity for violations of protected speech. Refund of taxes paid, plus interest, is also

mandated under 42 U.S.C. § 1983, which exists explicitly to provide compensation for violations

of Constitutional rights—in this case, taxes paid. Therefore, taxes I have paid are refundable.

Also, Justice Kagan’s recognition that the finding of a protected speech indicium of

taxation makes “a ‘federal constitutional issue’ out of basic ‘employment matters, including

working conditions, pay, discipline, promotions, leave, vacations, and terminations,’” (Slip op.

at 16) and that “almost all economic and regulatory policy affects or touches speech” (Slip op.

at 28), is simply recognition that there is a factual tax component to protected speech, and

that facts formerly regulated through taxation, are now facts maintained by taxation. The

facts alluded to by Justice Kagan, are in fact the general welfare and maintenance is the

meaning of taxation in the context of the general welfare. I am entitled to have the Court

state what the law is with respect to maintenance and taxation in relation to each other.

Dated:_____________

___________________
John Henry Ryskamp
1677 Arch Street
Berkeley, CA 94709
510-848-6898
philneo2001@yahoo.com

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CERTIFICATE OF SERVICE

This is to certify that a copy of the Motion for Summary Judgment was served on

Victoria Z. Gu

by mailing the same on

June 5, 2019

in a postage-paid wrapper addressed to

Victoria Z. Gu

at

100 First Street

Suite 1800
San Francisco, CA 94105

Dated:______________________

____________________________
John Henry Ryskamp
Petitioner