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17780Individual Master File errors a due process problem

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  • Legalbear
    Aug 8 10:32 PM

      It would also seem that a summary proceeding in a Collection Due Process Hearing would also violate due process under what the court says in paragraphs 25-26 below, in other words, the mere fact you get to raise your issues summarily denied, and not seriously considered by the hearing officer in the due process hearing, is also to little too late for similar reasons.


      [23]       "As the case comes to us, the [IRS] made use of evidence [consisting of Individual Master File entries] of which [alleged taxpayer] may have been unaware, and which he had no chance to answer: a prime requirement of any fair hearing." United States v. Balogh, 157 F.2d 939, 943, judgment vacated on other grounds, 329 U.S. 692.


      [24]       See also Brewer v. United States, 211 F.2d 864 (C. A. 4th Cir. 1954).


      [25]       So basic, indeed, is this "prime requirement of any fair hearing" that counsel for the Government contended for the first time in oral argument that the rights of the registrant were amply protected by the provision in the regulations for a mode of "rehearing." In short, the argument is that after the Appeal Board decides against the registrant and his file is returned to the local Board, he has the right under the selective service regulations to examine all information in his file, including the recommendation of the Department, 32 CFR § 1606.32 (a)(1); 32 CFR § 1606.38 (c). The registrant would then have a right to request a reopening of his classification, 32 CFR § 1625.1 (a); 32 CFR § 1625.2, if he submitted "proof of error in documents submitted to the appeal board by the Department of Justice."*fn7 Moreover, he may present his contentions to the Director of Selective Service or the State Director of Selective Service, requesting a reopening of his classification or a reconsideration by the Appeal Board, 32 CFR § 1625.3 (a); 32 CFR § 1626.61 (a).


      [ 348 U.S. Page 417]


                  We believe these remedies to be too little and too late. Too little, because the right to present petitioner's side of the case is broader than the bare right to correct "errors" made by the Department in its recommendation. Too late, because, except with the permission of the national or state Director, only the local Board may reopen the case; and a certain reluctance is to be expected after the Appeal Board, albeit on incomplete presentation, has rejected the registrant's claim. Moreover, the local Board has discretion to refuse to reopen the case if it "is of the opinion that the information accompanying such request fails to present any facts in addition to those considered when the registrant was classified or, even if new facts are presented, the local board is of the opinion that such facts, if true, would not justify a change in such registrant's classification . . . ." 32 CFR § 1625.4.


      [26]       We hold that the over-all procedures set up in the statute and regulations, designed to be "fair and just" in their operation, 62 Stat. 605, 50 U. S. C. App. § 451 (c), require that the registrant receive a copy of the Justice Department's recommendation and be given a reasonable opportunity to file a reply thereto. Accordingly, the decision of the Court of Appeals, upholding petitioner's conviction for refusing to submit to induction, is


      [27]       Reversed.


      GONZALES v. UNITED STATES, 1955.SCT.40337 <http://www.versuslaw.com>¶ 23-27; 348 U.S. 407 (1955).


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