Robert Kovsky, Attorney-at-Law

Recent projects

... )  War Tax Resistance, an Exercise of Religious Freedom — Lawsuit against the I.R.S.
... )  Feelings, Forms and Freedom: new constructions in technology and personality
... )  Civil Litigation in Support of Technological Innovation


B.S.E.E., MIT, 1968, Tau Beta Pi.
M.A., Physics/Materials Science, UC Berkeley, 1971.
J.D., UC Berkeley, 1974; Chairman, Moot Court Board.

Member, California State Bar.
Admitted to appear before the Ninth Circuit Court of Appeals.

War Tax Resistance, an Exercise of Religious Freedom:
Lawsuit against the I.R.S.

Elizabeth F. Boardman, a lifelong pacifist and Quaker, is suing the Commissioner of Internal Revenue (the IRS) for bureaucratic suppression of her religious practice of war tax resistance. The lawsuit is based on the Free Exercise Clause of the First Amendment to the United States Constitution, which prohibits government action hostile to religion, and on the Religious Freedom Restoration Act of 1993, which prohibits the federal government from unnecessarily burdening a religious practice.

Proceedings in the Ninth Circuit Court of Appeals

... )  Petition for Rehearing and for Rehearing en banc filed by Boardman on March 26, 2015. (.pdf file, 421 kB)
The Petition was filed in response to the Panel Decision of the Ninth Circuit Court of Appeals, which rejected Boardman's claim.

Extracts from the Petition (edited and re-arranged):

Plaintiff, a lifelong Quaker and peace activist, seeks restoration of religious freedoms of Quakers that were established during the 1980's and that expressly include a right to refuse to pay income taxes voluntarily, if the taxpayer files a correct tax return. The IRS collects taxes by involuntary means, plus statutory penalties, interest and collection charges. Quakers who abhor participating in violence, even indirectly, have maintained such religious practices of "war tax resistance" since the 17th century.

Plaintiff alleges that the IRS acts unlawfully to suppress religious practices of war tax resistance.

Under the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), protestors should not be labeled "frivolous" or penalized if they reported "the correct amount due and explained in their attached statement their refusal to pay because of their objection to war." (Jenney v. U.S., 755 F2d. 1384 (9th Cir. 1985).)

See also Kahn v. U.S., 753 F. 2d 1208 (3rd Circuit 1985) ("The civil penalty statute does not prohibit her letter of protest."); Eicher v. U.S., 774 F. 2d 27 (1st Cir. 1985) ("penalizes only noncompliance with federal tax requirements, not taxpayers' freedom of expression.")

Plaintiff's Complaint quoted text from the online IRS website (since changed) that referred to Rev. Rul. 2005-20:

This revenue ruling describes as frivolous the refusal to file returns or pay taxes based on moral, religious or ethical objections to the government programs or policies for which the taxes will be used.

The Complaint alleged that the IRS applied a "frivolous" label to Plaintiff's attempt to carry her witness to tax court and that the IRS disregarded authorized procedures and used bureaucratic suppression, misdirection and misrepresentation against her. More recently, Plaintiff has identified Quaker Vickie Aldrich, punished by the IRS for "frivolous" conduct of enclosing a religious protest message with a tax return that lacked full payment, and Quaker Steve Leeds, threatened with punishment for similar conduct even though he owed no tax.

Vickie Aldrich was initially punished by a $5000 penalty for refusing to pay taxes and enclosing a religious message with her return. The penalty was reduced to $500, but she had to sign a "a letter promising to not send them frivolous arguments. ... The promise exacted was to not send words that explain or argue or support an act of conscience." Vickie Aldrich blog at entry for Aug. 11, 2012

Apparently, tax returns with enclosed religious protest messages may be flagged or labeled as "frivolous" and selected for adverse treatment; returns without full payment and without messages go to ordinary collections processing.

As stated by the District Court Decision when it dismissed the action:

Plaintiff claims that Defendant "employs punitive procedures and/or policies against persons who fail or refuse to make full payment of taxes on grounds of religion or conscience." Defendant's practices, according to Plaintiff, are discriminatory and seek to suppress conduct undertaken for religious reasons. In fact, Plaintiff alleges that Defendant intentionally frustrated her religious beliefs by depriving her of rights and procedures that would have been available had she not asserted a religious motive for withholding a portion of her taxes.
The Appeals Panel Decision ruled:
"the Anti-Injunction Act (AIA) precludes federal jurisdiction here..."
The Anti-Injunction Act provides that: "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person ...." 26 U.S.C. § 7421(a).

Preclusion apparently extends to all claims of unlawful IRS abuse of religious war tax resisters, so long as no penalty is actually imposed or if a penalty is abated when disputed, as later happened in the Vickie Aldrich case.

An authoritative decision of the District of Columbia Circuit rejects blanket preclusion of federal jurisdiction over IRS misconduct and prescribes a more careful inquiry.

Cohen v. U.S., 650 F.3d 717 (D.C. Cir. 2011) (en banc) involved disputes over IRS procedures for certain tax refunds. The court prescribed a fact-based approach for claims of alleged IRS violations of legal or constitutional taxpayer rights in cases where plaintiff does not challenge a tax assessment or collection.

Here, correct self-assessment of tax by the taxpayer is a premise of Plaintiff's claims. TEFRA and Jenney authorize immediate collections. Plaintiff prefers immediate collections to minimize penalty and interest charges.

IRS selections of conservative political groups for employment of methods of bureaucratic suppression were revealed in May, 2013, shortly after the Opening Brief in this appeal was filed. Allegations in complaints filed by such groups against the IRS resemble those stated herein, with a "BOLO" (Be On the Look Out) keyword list playing a role like the "frivolous" label here, flagging a file for adverse action by means of an unlawful test. The Cohen approach to the AIA has been applied in such cases with results favorable to the plaintiffs. (NorCal Tea Party Patriots v. IRS, 2014 U.S. Dist. LEXIS 97229 (S.D. Ohio 7/17/14); Freedom Path v. Lerner, 2015 U.S. Dist. LEXIS 22025 (N.D. Tex. 2/24/15).)

As an independent reason for a rehearing, preclusion of Quaker religious practices from protections of Religious Freedom is contrary to the Religious Freedom Restoration Act of 1993 (RFRA), which amended the AIA. (42 U.S.C. § 2000bb-3(a).)

In Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the Court held that RFRA established a "very broad protection for religious liberty." Dissenters objected to "a decision of startling breadth."

In Holt v. Hobbs, 135 S. Ct. 853 (2015), the Supreme Court ruled that the Arkansas Department of Correction violated RLUIPA (the Religious Land Use and Institutionalized Persons Act of 2000, which closely resembles RFRA but applicable to State functions rather than federal functions) when it failed to accommodate an inmate, "a devout Muslim who wishes to grow a 1/2-inch beard in accordance with his religious beliefs."

The Holt Court ruled: "RLUIPA requires us to 'scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants' and 'to look to the marginal interest in enforcing' the challenged government action in that particular context," quoting from the Hobby Lobby decision.

Without taking evidence, the District Court below found:

Here, while Plaintiff claims she does not wish to interfere with tax assessment and collection, ... her complaint is actually a thinly-veiled attempt to force extensive and burdensome changes to Defendant's already complex taxation system. ... The Court has no doubt that ruling in Plaintiff's favor would negatively impact Defendant's established methods of assessing taxes. It is also clear that compelling Defendant to adopt procedures catering to the religious or moral views of every taxpayer would significantly burden tax collection. Indeed, the costs of administering the tax system may become prohibitively expensive, threatening the system's integrity, if Defendant allocated tax revenue based on the individualized beliefs of each taxpayer.

Plaintiff submits that Holt requires RFRA determinations to be made on the basis of evidence. Under Holt, a determination by a district court on the basis of "no doubt," "it is also clear" and "costs ... may become prohibitively expensive" is insufficient when the federal government seeks to extinguish a religious practice.

Discussing a position similar to that of the District Court, the Holt Court stated:

At bottom, this argument is but another formulation of the "classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions." [Citation.] We have rejected a similar argument in analogous contexts, [citations], and we reject it again today.
Consideration of merits and possible remedies in this case suggests that a minimum RFRA accommodation or constitutional protection should define categories of fully protected protest conduct (correct return filed, no tax remains due), partially protected conduct (correct return filed, refusal to pay full tax for religious reasons) and unprotected conduct. Penalties and procedures, e.g., IRS exercises of discretion, should conform to rigid neutrality when dealing with religious protestors. Harsh IRS collection methods directed at partially protected religious protestors might require some limitations. Regardless of specific terms, an accommodation or constitutional protection would clarify relations between religious tax protestors and the IRS.

Any accommodation would be drafted by the IRS with oversight by the District Court, subject to possible objections, suggestions and appeal by Plaintiff. Court approval of an accommodation would likely moot other issues.

For the foregoing reasons, Plaintiff requests a rehearing or rehearing en banc

Prior Proceedings (in reverse chronological order)

... )  Decision of the Ninth Circuit Panel affirming the District Court filed on March 12, 2015. (.pdf file, 184 kB)

... )  Letter to the Court filed by the IRS on January 25, 2015 concerning the decision in Holt v. Hobbs that was decided by the Supreme Court on January 20, 2015 (.pdf file, 102 kB)

... )  Letter to the Court filed by Boardman on January 30, 2015 concerning the decision in Holt v. Hobbs that was decided by the Supreme Court on January 20, 2015. (.pdf file, 279 kB)

... )  Letter to the Court filed by the IRS on July 10, 2014 concerning the decision in Burwell v. Hobby Lobby Stores, Inc. that was decided by the Supreme Court on June 30, 2014. (.pdf file, 102 kB)

... )  Letter to the Court filed by Boardman on July 7, 2014 concerning the decision in Burwell v. Hobby Lobby Stores, Inc. that was decided by the Supreme Court on June 30, 2014. (.pdf file, 831 kB)

... )  Appellant's Reply Brief, filed by Boardman in the Ninth Circuit Court of Appeals on August 15, 2013. (.pdf file, 274 kB)

... )  Brief for the Appellee, filed by the Government in the Ninth Circuit Court of Appeals on July 3, 2013. (.pdf file, 377 kB)

... )  Appellant's Opening Brief, filed by Boardman in the Ninth Circuit Court of Appeals on May 8, 2013, docket number 13-15022. (.pdf file, 647 kB)

District Court Proceedings

... )  Memorandum and Order dismissing the action, filed by the District Court on December 6, 2012. (.pdf file, 145 kB)

... )  United States' Reply in Support of its Motion to Dismiss filed by Defendant United States (Commissioner of Internal Revenue) on August 15, 2012. (.pdf file, 193 kB)

... )  Memorandum in Opposition to Motion to Dismiss filed by Plaintiff Elizabeth Boardman on July 31, 2012. (.pdf file, 311 kB)

... )  Memorandum in Support of Motion to Dismiss filed by Defendant United States (Commissioner of Internal Revenue) on June 29, 2012. (.pdf file, 279 kB)

... )  Complaint filed March 13, 2012:

Elizabeth F. Boardman v. Commissioner of Internal Revenue, United States District Court, Eastern District of California, 2:12-cv-00639 MCE GGH. (.pdf file, 242 kB)

Please see also:

Peter J Reilly, "Ninth Circuit Rules Against War Tax Resister" (3/23/2015) in Forbes.

Peter J Reilly, "IRS Eases Up On War Tax Resisters" (8/21/2013) in Forbes.

Peter J Reilly, "Freedom Rider Asks To Give Peace A Chance - Peace Tax Fund Act Of 2013" (7/23/2013) in Forbes.

Peter J Reilly, "War Tax Resisters - Don't Call Them Frivolous" (1/06/2013) in Forbes.

... ) Additional information about the action.

Feelings, Forms and Freedom:
new constructions in technology and personality

"Feelings, Forms and Freedom" ( ... ) carries forward projects that were originally based in engineering and scientific research I undertook as a graduate student. The constructions have potential applications to legal problems, as discussed in an essay that suggests a new approach to problems of brains and human behavior, (...) "How to Solve Free-Will Puzzles and Overcome Limitations of Platonic Science" (2015 rev.), a .pdf file (1.9 MB). The essay is discussed on a separate (...) web page that is part of the Quad Nets Project, discussed below.

Publication of initial materials occurred in late 2012. As of January of 2015, new constructions are in development based on "pulse bursts" that specify forceful muscle-like twitches and "bursting devices" that generate and control pulse bursts.

The 2012 materials include the following:
Summary.  In proposed technological constructions, device models of brain parts generate "imagery" during operations. Corresponding "imagery" in psychological constructions refers to a person's conscious experiences. Psychological images include experiences referred to a person's own body, e.g., itching and balancing, experiences called "bodily feelings." Other images refer to material bodies other than the person's own body, such as shapes and colors, and are called "sensations of objects." Bodily feelings and sensations of objects have separate origins and different characters and generally co-exist while frequently overlapping and merging, e.g., when a person picks up and eats a bit of food or when a person uses a screwdriver. Other disparate kinds of imagery include images of "other persons" who presumptively have bodily feelings and sensations of objects much like my own.

New constructions juxtapose, combine, co-ordinate and organize images of various kinds. Technology and psychology develop together. An open class of matching operations includes operations that detect when two images are "the same," operations that detect which of two comparable images is larger and operations that detect shared characteristics and distinctions between images. "Actual imagery" of present bodily movements, feelings and sensations is compared with "control imagery" that defines goals, forms and laws. For example, suppose a racer is running towards the goal line during a competition: imagery of the goal line and of other runners is used to control the racer's movements, feelings and sensations that are aimed at the goal line, seeking to merge momentarily with it. A feeling of freedom accompanies the effort and motivates the racer. New constructions propose models for such movements, feelings, sensations and motivations.

Quad Nets Project. Psychological and technological constructions in Feelings, Forms and Freedom are closely related to previously presented technologies: Quad Nets and ( ... ) timing devices. The ( ... ) Quad Nets website presents the Quad Nets Project and related matters. All the technologies provide components for anticipated operational models of brains. The Quad Nets Project shows how designs for new devices lead to new principles of psychology. In contrast to "the modern scientific view" that is based on states, the Quad Nets Project and succeeding projects are based on action. In other words, designs for new devices embody action in contrast to computerized models that embody states. Proposals for brain models based on new technologies suggest alternative answers to longstanding questions about brains and freedom.

Civil Litigation in Support of Technological Innovation

My professional employment has included drafting of appellate briefs and trial court memoranda submitted on behalf of technology developers who have been sued by Movie and TV Studios and who have been the targets of other adversarial actions because of alleged involvement with copyright infringement. Please see the website of the ( ... ) Rothken Law Firm for details of the cases. Please direct any inquiries about the litigation to Mr. Rothken.

Columbia Pictures Industries, Inc. et. al. v. Gary Fung and isoHunt Web Technologies, Inc.

Hearing before the Ninth Circuit Court of Appeals on May 6, 2011:

... ) Opening Brief on behalf of Gary Fung and isoHunt Web Technologies, Inc.

... ) Opposition Brief on behalf of plaintiffs Columbia Pictures Industries, Inc. et. al.

... ) Reply Brief on behalf of Gary Fung and isoHunt Web Technologies, Inc.

... ) Panel decision of the Court of Appeals (filed 3/21/13).

... ) Fung's petition for rehearing or rehearing en banc (filed 4/3/13).

Email should be directed to the address shown in the adjoining image.

Copyright © 2015 Robert Kovsky