here - Fuerst Ittleman David & Joseph, PL

Case: 11-1612 Document: 003110561288 Page: 38 Date Filed: 06/13/2011
raised at the first opportunity. Appellant submits that violations of the United
States Constitution are so important as to require that the District Courts and the
Circuit Courts examine them at the first opportunity (in this case in the context of
summons enforcement/petitions to quash summons). What could be more an abuse
of the Court‘s process than unconstitutional conduct?
The best way to illustrate the fallacy of the District Court‘s reasoning is by
way of hypothetical. If the IRS had an audit plan named ―the New Jersey Project‖
and issued IRS summonses in respect to those taxpayers residing in New Jersey for
tax years long since closed, but only for those individuals who are members of a
discrete racial group, should not the target of such an IRS audit be permitted at the
first opportunity to seek redress for such unconstitutional conduct? Appellant
submits one should as equal protection under the law mandates such a conclusion.
The fact that the violation of equal protection raised in the instant case is based on
income level instead of race should not be outcome determinative; rather the
determination should be made on a clear violation of the Equal Protection Clause
of the 14 th Amendment and/or the Due Process Clause of the Fifth Amendment.
Accordingly, the District Court‘s conclusion that Mr. Gangi‘s institutional bad
faith arguments are premature was in error, rather they were ripe for the District
Court‘s consideration.
FUERST ITTLEMAN, PL
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