Kramer v. Jenkins

• Decision Date: 24 November 1986
• Docket Number: No. 86-1849,86-1849
• Citation: 806 F.2d 140
• Parties: -729 Arnold I. KRAMER, Petitioner-Appellant, v. O.C. JENKINS, Warden, and United States Parole Commission, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 140

806 F.2d 140

59 A.F.T.R.2d 87-729

Arnold I. KRAMER, Petitioner-Appellant, v. O.C. JENKINS, Warden, and United States Parole Commission Respondents-Appellees.

No. 86-1849.

United States Court of Appeals Seventh Circuit.

Nov. 24, 1986.

Julius Lucius Echeles, Sharon C. Kramer, Chicago, Ill., for petitioner-appellant.

William F. Murphy, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for respondents-appellees.

Before BAUER, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.

PER CURIAM.

Kramer VI has arrived faster than we thought possible. The previous opinion in this sequence concluded that the Parole Commission was entitled to rely on a deficiency notice issued by the IRS in determining--for purposes of evaluating the severity of Kramer's offense--that Kramer evaded more than $300,000 in taxes. Kramer v. Jenkins, 803 F.2d 896 (7th Cir.1986) (Kramer V ). We held that the opportunity to argue before the IRS supplied Kramer with the process that was due him.

Kramer's petition for rehearing insists that the IRS issued its notice without offering him an opportunity to provide comments. Kramer also contends that the Commission violated its own rules by substituting reliance on the deficiency notice for reliance on the presentence report, which contained the same estimate of tax evasion. We invited the Commission to reply to these contentions; the Commission insisted that because Kramer's arguments in the district court did not include a challenge to the sufficiency of the processes afforded by the IRS, no further answer is necessary. But this is a collateral attack, and for better or worse the principles of finality that govern ordinary civil litigation do not govern challenges to a person's continued detention in prison. The importance of addressing the procedures open to Kramer before the IRS may not have been clear until we released Kramer V. The due process clause requires more than a runaround, and Kramer is entitled to one clear shot to show that he did not receive adequate process. The Commission has offered to file affidavits if we think the issue open; the better course, however, is to remand to the district court, so that it may take such evidence and make such findings as the evidence supports.

Let there be no mistake: this remand is not an invitation to relitigate what was established in Kramer V. It is to allow Kramer to prove, if he can, that he did not have an opportunity to present his contentions to the IRS "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). The due process clause does not require a hearing; it requires an opportunity to be heard. So if the IRS offered Kramer the opportunity to present his arguments, the fact that Kramer may have bypassed that option does not call for relief. Kramer points out that 26 C.F.R. Secs. 601.105 and 601.106, which give taxpayers an opportunity for hearings and administrative appeals, apply only...