Dorgan v. Mercil, 9323

• Decision Date: 01 July 1977
• Docket Number: No. 9323,9323
• Citation: 256 N.W.2d 114
• Court: North Dakota Supreme Court
• Parties: Byron L. DORGAN, Tax Commissioner, Office of State Tax Commissioner, State of North Dakota, Appellee, v. LeRoy J. MERCIL and Mary E. Mercil, Appellants. Civ.

Page 114

256 N.W.2d 114

Byron L. DORGAN, Tax Commissioner, Office of State Tax Commissioner, State of North Dakota, Appellee, v. LeRoy J. MERCIL and Mary E. Mercil, Appellants.

Civ. No. 9323.

Supreme Court of North Dakota.

July 1, 1977.

As Amended On Denial of Rehearing July 27, 1977.

LeRoy J. Mercil and Mary E. Mercil, pro se.

Robert W. Wirtz, Sp. Asst. Atty. Gen., Tax Dept., Bismarck, for appellee.

VOGEL, Justice.

This is an appeal from a judgment finding the appellants guilty of civil contempt in failing to comply with a writ of mandamus issued pursuant to § 57-38-47, NDCC, to compel the appellants to file a tax return complying with statutory requirements.

For the year 1975 the appellants filed, on the appropriate forms, what purported to be a North Dakota individual income tax return. It gave their names and address, number of exemptions claimed, stated that they were residents, and that their social security numbers had been "lost." Instead of inserting appropriate figures, they inserted zeros in the spaces calling for adjusted gross income, North Dakota taxable income, net tax liability, and balance of tax due. Beside each of these figures they put an asterisk, which referred to a statement "this figure is expressed in Constitutional Dollars of silver and/or gold." Beside the space for adjusted gross income they also placed a double asterisk which referred to a statement that "this means that specific objection is taken to the specific questions, on grounds of the 1st, 4th, 5th, 7th, 8th, 9th, 10th, 13th, 14th, & 16th Amendments, as to Federal Reserve notes."

The forms also bear the statement, "I offer to amend or re-file this return to exactly as you wish them, if you can show me how to do so without waiving my Constitutional rights."

The forms were signed and dated. Attached to the forms were more than fifty pages of miscellaneous reproductions of printed matter, including news stories, interviews, magazine articles, and the like.

The Tax Commissioner determined that the forms did not comply with statutory requirements and returned them to the appellants, pointing out lack of compliance with statutory requirements, including the requirement that a copy of the Federal tax return be attached. The appellants then filed another tax return form, containing substantially the same entries as before, plus the names of their children. To it was attached a Federal tax return form filled out in a fashion similar to the State form, but showing $900 estimated tax paid and a refund of $900 due.

After receipt of the second form, the Tax Commissioner applied to the district court of Burleigh County for a writ of mandamus to compel the filing of a proper tax return. Writs of mandamus are authorized by § 57-38-47, NDCC, when taxpayers have failed to file returns and the Tax Commissioner has ordered them to do so.

A hearing was held at which the appellants represented themselves without counsel. Attorneys for the Tax Commissioner offered to put a witness on the witness stand to show sufficient income of the appellants to require the filing of a tax return. After a colloquy between the court, counsel and appellants, the appellants stipulated that they had filed the two forms and the dates of filing. One of the attorneys for the Tax Commissioner then argued that there remained no issue of fact and that nothing remained to be considered except questions of constitutionality. The...