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Cupp v. Saxbe

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


October 6, 1975

EDWARD A. CUPP, APPELLANT
v.
WILLIAM SAXBE, ATTORNEY GENERAL OF THE UNITED STATES, GEORGE P. SCHULTZ, SECRETARY OF THE TREASURY OF THE UNITED STATES, C. D. SWITZER, DISTRICT DIRECTOR OF INTERNAL REVENUE, U.S. TREASURY DEPARTMENT, APPELLEES.

Before Associate Justice CLARK (ret.)*fn* , Circuit Judge VAN GRAAFIELAND*fn* , District Judge CLARKE*fn* .

Judgment Order

Appellant seeks declaratory and injunctive relief declaring unconstitutional the tax exception to the Declaratory Judgment Act and enjoining the enforcement of Section 7201 through 7206 of the Internal Revenue Code of 1954 and the Regulations issued thereunder. Pursuant to 28 U.S.C. ยง 2282, appellant seeks to convene a three-judge court. Appellant also seeks an order stating that the questions posed on Form 1040, Internal Revenue Service if answered, may tend to incriminate him and that he should not be compelled to answer them. Appellant's contentions are without merit.

The District Court's denial of a motion to convene a three-judge court was proper. Idlewild Liquor Corporation v. Epstein , 370 U.S. 713, 715 (1962), Crossen v. Brecken-ridge, 446 F.2d 833 (6th Cir. 1971). Majuri v. United States, 431 F.2d 469 (3rd Cir. 1970), cert. denied 400 U.S. 943 (1970).

Appellant's suit is in essence against the United States. There has been no waiver of sovereign immunity and, therefore, this action is barred. Larson v. Domestic & Foreign Commerce Corporation , 337 U.S. 682 (1949).

Appellant's request for declaratory relief is specifically prohibited by the federal tax exception to the Declaratory Judgment Act, the constitutionality of which has been upheld.Mitchell v. Riddell , 402 F.2d 842 (9th Cir. 1968), cert. denied 394 U.S. 456 (1969).

Appellant's argument that his Fifth Amendment privilege against self incrimination gives him license to not complete his federal tax return is in error. United States v. Sullivan , 274 U.S. 259 (1927), United States v. Daly , 481 F.2d 28 (8th Cir. 1973), cert. denied 414 U.S. 1064 (1974); United States v. Porth , 426 F.2d 519 (10th Cir. 1970) cert. denied , 400 U.S. 824 (1970). Garner v. United States , 501 F.2d 228 (1972).

Alternatively, appellant seeks an order requiring the Internal Revenue Service to conduct an administrative hearing regarding issues raised by his 1973 federal tax return. This issue has been disposed of in a related appeal. Cupp v. Secretary of the Treasury ,

Ordered and ADJUDGED that the Order of the District Court be, and hereby is, AFFIRMED.

Costs taxed against appellant.


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