Subject: Latest Henson filing for comment!
From: Keith Henson
Date: 28 Jun 1999 03:33:02 GMT

Ok, folks. Various people advised me not to post this till it was ready to be filed. I am trying to file it monday, so there is not much time for you to find the spelling and grammer and logic errors. Sorry.

And, I really appreciate the help. You may be able to recognize your contributions.

Keith Henson

**************

H. Keith Henson
P.O. Box 60012
Palo Alto, CA 94306
(650) 423-4040 (pager)
(650) 325-7533

             UNITED STATES DISTRICT COURT
            NORTHERN DISTRICT OF CALIFORNIA

                                 )   Case No. C-98-21290JW
H. KEITH HENSON, an individual,  )
                                 )
        Plaintiff,               )   REPLY TO NOTICE OF
                                 )   MOTION TO DISMISS
        V.                       )   AND SUPPORTING
                                 )   MEMORANDUM
                                 )
INTERNAL REVENUE SERVICE,        )
Does 1-36,                       )   Date: July 19, 1999
        Defendants.              )   Time: 9:00 am
_________________________________

INTRODUCTION

            Contrary to defendants' assertion on page 1 of the motion,
"Plaintiff also seeks up to one billion dollars in damages" plaintiff
personally seeks no damages, and only such award as is allowed by the
Internal Revenue Service's (IRS) standard reward policy for recovery of
fraudulently unpaid taxes (if so determined) or as the Court may set within
its powers to be just and proper.  One billion dollars was the figure David
Miscavige (Exhibit 1 as cited in the complaint) stated that the IRS had
sought to collect prior to Scientology's "negotiating" a closing agreement
for 1.25% of that amount.

            If damages happen to be collected as a result of this suit,
defendants will collect for the US Treasury.

QUESTIONS ANSWERED
      1.    United States has waived sovereign immunity.
      2.    Plaintiff has standing under Flast v. Cohen.
      3.    Injury is not required under Flast; being a taxpayer is enough.
      4.    The Supreme Court indicated in Flast that injunctive or
declaratory relief may be obtained for establishment clause cases.
      5.    It is not appropriate to join Scientology as a party to this
action.

STATEMENT OF FACTS

            Plaintiff is in general agreement with defendants' brief
statement of facts on the long and bitter fight between the IRS and
Scientology as they are publicly known.

            There is more to the story however.  (See Exhibit A, Timeline of
Scientology versus the IRS attached)  The IRS, after more than 25 years and
many supporting rulings from appeals courts and from the Supreme Court,
abruptly caved in to Scientology demands for tax exempt status after a visit
(strangely unnoted in an appointment log obtained under the Freedom of
Information Act) in October 1991 by top Scientology officials David
Miscavige and Marty Rathbun to then IRS Commissioner Fred T. Goldberg, Jr.
The Scientology account of this meeting and some of the abusive activities
against IRS personnel which led up to it may be found on pages 24-25 and
preceding pages of Complaint, Exhibit 1.  Mr. Goldberg left the
Commissioner's post shortly thereafter (January 1992) and was replaced 
for a
year by Shirley D. Peterson.  Mrs. Peterson (assistant attorney general
before becoming IRS Commissioner, now the president of Hood College) had
been extensively involved with Scientology appeals (eg. 91-15730, 91-15734
Ninth Circuit) prior to becoming Commissioner.

            The nearly instant turnaround of the IRS at the highest levels
following this meeting has never been explained.  It was forced, with many
irregularities, on the unhappy lower levels of the IRS.  It is unknown if
the departure of Mr. Goldberg from Commissioner was related (he moved within
a few months to another post in the Treasury before leaving government
service).  At the time there was extensive investigation of IRS officials by
private investigators working for Scientology.

            Possibly the turnaround was only due to the overwhelming number
of lawsuits filed against the IRS by Scientologists acting for Scientology
and the exhaustion of the IRS's litigation budget.  The prospects of
Scientologists' filing large numbers of commercial liens against the
property of IRS agents may also have been an inducement.

            "But it is also possible that Scientology pressured senior IRS
officials into granting an unmerited tax exemption, by using private
detectives and frivolous (?) lawsuits . . . .

            If it [IRS] has in fact arbitrarily ruled in favour of
Scientology because of the latter's aggressive tactics, this blows a
massive hole in the principle of equity and undermines its impartiality."
(Exhibit B.)

            Defendants [footnote 2] quote Sections 7121 and 7122 of the
Internal Revenue Code that closing agreements "may not be reopened unless
there is fraud, malfeasance or misrepresentation of material fact."  Given
Scientology's well known history and tactics, all three could be involved.

SOVEREIGN IMMUNITY ISSUES.

            The cases cited by the defendants in this section seem remote
from the case at hand in that none were cases invoking the Establishment
clause.  F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996 (1994); is a
wrongful termination suit.  United States v. Dalm, 494 U.S. 596, 608, 110
S.Ct. 1361 (1990) involved a lack of jurisdiction due to the statute of
limitation on taxes paid in error.  Hughes v. United States, Elias v.
Connett, Whyte v. Internal Revenue Service, and Gilbert v. DaGrossa were all
challenges to tax collection.  Hill v. United States was a suit involving
civil service status.  Hughes, Hill, and Gilbert are all supportive of
plaintiff's case (due to different facts) where 5 USC Section 702 is
discussed.  Arnsberg v. United States was a failed Bivins claim for monetary
damages.

              Flores v. United States is a suit about confiscated bail money
and seems remote from the present case which is in essence about tax policy
and not the payment of a specific person's or corporation's taxes.

            More on point would be Tax Analysts & Advocates v Shultz (1974,
DC Dist Col) 376 F Supp 889, 74-2 USTC P 13006, 34 AFTR 2d 74-5289.  The
summary reads:

   "Doctrine of sovereign immunity is inapplicable to bar action attacking
Revenue Ruling as illegal act of Internal Revenue Service by plaintiffs
alleging they are persons adversely affected and aggrieved within the
meaning of the Administrative Procedure Act [5 USCS Section 702], in tha
Administrative Procedure Act constitutes waiver of sovereign immunity and
prima facie claim that acts by government officials are ultra vires
prevents invocation of doctrine."

            Also closer to the point would be Larson v. Domestic and
Foreign Commerce Corp. 337 U.S. 682, 689-91, 69 S.Ct. 1457, 1461-1462, 93
L.Ed 2d 1628 (1949).  The citation reads, "(In) actions claiming that a
government official acted in violation of the Constitution or of statutory
authority . . . Congress has either waived sovereign immunity or the
doctrine does not apply."

            Plaintiff does not understand defendants' argument citing White
that the IRS is not a suitable entity to sue.  Plaintiff could, and perhaps
should, name and serve notice converting Does to the IRS Commissioners from
Mr. Goldberg's time to the present day.  However, Exhibit C lists no fewer
than 14 Scientology related lawsuits suits, some on appeal, which named the
IRS as defendant between 1983 and 1994.  Plaintiff will take advice from
defendants or the court if the rules have changed and the IRS can no longer
be named as a defendant.

            Concurrently plaintiff is requesting permission of the Court to
amend the complaint and for the Third Cause of Action to rely on 5 USC
Section 702 rather than the Constitution.  Plaintiff believes IRS policy has
contributed to the abuse of plaintiff's civil rights to the extent that IRS
rulings have enriched Scientology corporations and on the order of a hundred
million dollars of tax exempt money has been spent on civil abusive
activities since 1993.

            Footnote 3 cites Simon v. Eastern Kentucky Welfare Rights
Organization, 426 U.S. 26 (1976) and makes the argument that this case
"would transfer determination of revenue policy away from those to whom
Congress has entrusted it and vest it in the federal courts."  Where policy
and the Constitution are in conflict, the courts have always had the last
word when revenue and spending policy acts reach some threshold of egregious
or unconstitutional.  Simon did not involve an establishment clause issue
and therefore does not invoke the same standard on standing as an
establishment clause case.

STANDING ISSUES

            Defendants claim "Plaintiff lacks standing to challenge the IRS
closing agreement based upon his status as a federal taxpayer and his claim
that the closing agreement violates the Establishment Clause of the First
Amendment."

            The first case defendants cite in this section is Lugo v.
Miller, 640 F. 2d 823 (6th Cir. 1981).  This is a 6th Circuit case and not
binding authority in this district.  Shephardizing reveals that it has not
been followed in the Ninth Circuit, and contrary authority rests in Lamont
v. Woods, 948 F.2d 825, Bowen v. Kendrick 487 U.S. 589, 108 S.Ct. 2562
(1988) and Flast v. Cohen 392 U.S. 83, 88 S.Ct. 1942 Supreme Court (1968).
The rule in such cases is that effectuation of a Congressional act by an
executive agency does not prevent taxpayer actions within the scope of Flast
and Valley Forge.  Indeed, this was the situation originally presented in
Flast.

            Bowin v. Kendrick is worth of a summary because not only did
Bowin have standing, the court ruled in his favor.

            In 1981 Congress passed the Adolescent Family Life Act, an
attempt to reduce the incident of teen pregnancies.  The Secretary of
Health and Human Services was to award grants for community programs which
provided "care" and/or "prevention" services.  Grantees were encouraged to
seek help from community, family, and religious organizations in the
prevention aspect of program.  DC District Court held that the Act
facially and "as applied" violated the Establishment Clause of the First
Amendment.

            On appeal the issue was:  did taxpayers have standing to
challenge Congressional Act, administered through an Executive Agency,
considering the rule established in Flast that taxpayer standing is valid
for establishment clause questions only if challenge is related to Acts of
Congress pursuant to Article I, Section 8 of US Constitution?

            It was decided that the fact that "funding authorized by
Congress has flowed through and been administered by the Secretary" does not
make for "any less a challenge to [the] congressional taxing and spending
power . . ."  620, 2580.  Generally, taxpayer standing is easy to get
in establishment clause cases, and that only time this is not the case is
when the challenged government action is made pursuant to authority the
constitution grants to the Executive Branch.

            Although all the cases cited involve Congressional spending
power, the courts have coupled "taxing and spending."  See the long Flast
quote below.

              In footnote 4, defendant tries to distinguish Revenue Ruling
93-73 from the formerly secret closing agreement.  The Revenue Ruling is an
integral part of the closing agreement, to wit:
VII.Treatment of Parishioners' Contributions
.. . . . .

     E. The Service also agrees to withdraw, obsolete or supersede, Rev.
Rul. 78-189 no later than April 1, 1994, irrespective of whether the audit
policies or practices described in paragraph B. (ii) are ever issued.

            Plaintiff more or less follows defendants' arguments on
Frothingham v. Mellon, 262 U.S. 447 (1923) and Flast v. Cohen, 392 U.S. 83,
102 (1968) down to page 6 line 26 where defendants try to distinguish
plaintiff's case from Flast.

            Flast is distinguished because plaintiff did not request that a
three-judge court be convened as provided in 28 U. S. C. Section 2282, 2284.
(Plaintiff would not object if the court decides sua sponte a three-judge
court should be convened.)

            Defendants' contention (page 7 line 1) that "Flast limited
taxpayer standing to challenges directed only [at] exercises of
congressional power" is not supported by a reading of Flast or subsequent
cases.  Flast is directed at both laws passed by Congress and the
administration of the laws:

      Secondly, the Government argues that a three-judge court should not
have been convened because appellants question not the constitutionality
of the Elementary and Secondary Education Act of 1965 but its
administration.  The decision in Zemel v. Rusk, 381 U.S. 1 (1965), is
dispositive on this issue. It is true that appellants' complaint states a
nonconstitutional ground for relief, namely, that appellees' actions in
approving the expenditure of federal funds for allegedly unconstitutional
programs are in excess of their authority under the Act.  However, the
complaint also requests an alternative and constitutional ground for
relief, namely, a declaration that, if appellees' actions "are within the
authority and intent of the Act, the Act is to that extent
unconstitutional and void." The Court noted in Zemel v. Rusk, supra, "We
have often held that a litigant need not abandon his nonconstitutional
arguments in order to obtain  [*91]  a three-judge court." 381 U.S., at
5-6. See also Florida Lime Growers v. Jacobsen, 362 U.S. 73 (1960); Allen
v. Grand Central Aircraft Co., 347 U.S. 535 (1954). The complaint in this
case falls within that rule.

            Plaintiff's arguments would be more closely analogous to Flast
in a world where Hernandez had not gone to the Supreme Court.  In such a
world, plaintiff would ask for a three-judge court and argue that to the
extent the IRS's actions "are within the authority and intent of the Act,
the Act is to that extent unconstitutional and void."  In this world,
however, the Supreme Court held that:

"Payments made to the Church's branch churches for auditing and training
services are not deductible charitable contributions under 170."

            Unless Hernandez is interpreted to give the IRS completely
arbitrary power to overrule Supreme Court decisions, subsequent Revenue
Ruling 93-73 was "in excess of their authority under the Act."  That the
secret Closing Agreement and Revenue Ruling 93-73 were negotiated in the
context of a litigation settlement has no bearing on the issues of exceeding
authority under the law or performing unconstitutional acts.  Otherwise,
government agencies could violate the Constitution with impunity by the
simple ruse of claiming they were settling litigation.

            None of the other cases cited, Valley Forge Christian College
v. Americans United for Separation of Church & State, 454 U.S. 464 (1982),
Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 228
(1974) and United States. v. Richardson, 418 U.S. 166, 175 (1974) were
complaints directed to "taxing and spending" under Article I, Section 8 of
the constitution.  Comment from Bowin mentions the first two cases.

      "In subsequent cases, most notably Tilton, we have not questioned
the standing of taxpayer plaintiffs to raise Establishment Clause
challenges, even when their claims raised questions about the
administratively made grants."  619, 2580  "This is not a case like Valley
Forge, where the challenge was to an exercise of executive authority
pursuant to the Property Clause of Article IV or Schliesinger v. Stop the
War, where the plaintiffs challenged the executive decision to allow
members of Congress to maintain their status as officers of the United
States Naval reserve."

            United States. v. Richardson, 418 U.S. 166, 175 (1974) (denying
standing because the challenge was not addressed to the taxing and spending
power but to the statutes regulating the CIA) did not invoke the
Establishment clause and were held to a different standard.

            Defendants' Motion to Dismiss, page 7 line 28 reads:
     Here, the IRS closing agreement does not facially differentiate among
religions because, like section 170, the closing agreement makes no
explicit and deliberate distinctions between different religious
organizations.  Id., see also Exhibit 3, attached to the Complaint.
From Exhibit 3, attached to the Complaint (and unexpectedly authenticated in
the Motion):

IV. Obligations and Undertakings During the Transition Period.
   A. Establishment of Church Tax Compliance Committee
    ...
       3. Responsibilities of CTCC.
        ....
           d. Guaranty.
            ...
               ix. Discharge of guaranty. Upon a material breach by the
Service of any of its obligations under this Agreement . . .

                  b. the issuance of a Regulation, Revenue Ruling or other
pronouncement of general applicability providing that fixed donations to a
religious organization other than a church of Scientology are fully
deductible unless the Service has issued previously or issues
contemporaneously a similar pronouncement that provides for consistent and
uniform principles for determining the deductibility of fixed donations
for all churches including the Church of Scientology;

            Here the IRS bound itself to treat Scientology differently from
other religions unless it changed the rules generally.  Unless it escaped
the attention of a lot of eyes, such a ruling has not been made in the past
six years (perhaps because the government could not afford the lose of
revenue if this policy were applied widely).  Thus the IRS closing agreement
in effect gave Scientology (and to a lesser extent Scientologists) a
finacially privilege worth some hundreds of millions of dollars (see Exhibit
E Analysis).  The IRS continues to "facially differentiate among religions"
and the closing agreement ("other than a church of Scientology") makes
"explicit and deliberate distinctions between different religious
organizations."

            Further, the IRS was bound by the closing agreement to keep
these unconstitutional terms secret:

                  c. the knowing, negligent or willful disclosure of
information described in section V. paragraph A.4 of this Agreement . . .

            The closing agreement is unconstitutional to such a obvious
degree that the only way it could have remained in force was by being kept
secret as required by the agreement itself.  Defendant IRS stonewalled the
DC District court over releasing this document as ordered in Tax Analysis v.
Internal Revenue Service 94-CV-00220 (THF) for over a year.  Plaintiff
cannot help wondering if the "leak" (by a "person unknown") was done as the
lessor of two evils to avoid invoking the "Discharge of guaranty.  Upon a
material breach by the Service . . . ." which made no exceptions for orders
of the court.

            Alternately, the agreement could have been drafted to purposely
incorporate blatantly unconstitutional provisions as an escape mechanism
which could be activated at any time by "leaking" the closing agreement.

            As a most serious "explicit and deliberate distinctions between
different religious organizations" the IRS agreed to distribute at taxpayer
expense to governments worldwide a "Church Fact Sheet." (IRS cover letter
attached as Exhibit D.)  Plaintiff believes the world wide dissemination of
a religious tract with the imprimatur of a US government agency to be an
event unique in the history of the United States:

                 d. the knowing, negligent or willful failure to
disseminate the Church Fact Sheet as required by paragraph 5 of the
Settlement Agreement attached hereto as Exhibit IV-5;

            Complaint Exhibit 1 (Miscavige speech) pages 29 and 30
references the "Church Fact Sheet" and its intended use:

And what about all those battles and wars still being fought overseas -
many of which were brought about originally by IRS false reports.  Well,
there's good news on that front too. To begin with, we will waste no time
carrying news of this new breakthrough to all foreign countries. Those
battles have been being held in place by suppressive governments just
quoting the IRS.

The line has been:

"You are an American religion. If the IRS doesn't recognize you, why
should we?"

The answer is -

"They do. And now, you better as well!"

Make no mistake - there is much work to be done on those fronts. But we
have already taken the first steps in using this IRS victory to end the
rest of the battles. What about all of the false reports I mentioned
tonight? We are now in possession of them and will be receiving many more
documents out of our files. We will diligently work to clean up all false
reports.

But there is another step that will go a long way in cleaning up the false
representations the IRS has made about us. The IRS has agreed to send
out leaflets to the governments of every nation. These letters will state
that they have done a thorough review of all Scientology activities from
top to bottom and having found nothing wrong - fully recognize us as a
bona-fide and qualified tax exempt organization to the full extent of the
law.

Furthermore, they will be attaching to each of these letters a printed
fact sheet on Scientology that explains what Scientology really is. Who
LRH is, and what all of our organizations are. It is very complete and
very accurate.

How do I know?

We wrote it!

And the IRS will be sending it out to every government in the world!  Even
Interpol will receive our fact sheet directly from the IRS. That's what it
looks like!

            Under whatever purported excuse or justification, the IRS mailed
a booklet to foreign governments which has been misrepresented by
Scientology as establishing Scientology to be a state-approved or endorsed
religion by the United States.

            Plaintiff sees this distribution as a violation of the
Establishment Clause.  No branch of the US government should be mailing out
"fact sheets" on behalf of any religion, particularly not Scientology
because it was clear from the beginning that these IRS letter and the "fact
sheets" would be used in attempts (to date unsuccessful) to obtain tax
exempt status from recalcitrant foreign countries.

            Since the closing agreement makes facial differences, there is
no need to continue with a Lemon test, though the complaint goes into detail
on how Revenue Ruling 93-73 and the closing agreement would fail Lemon.

            Line 13, page 8 reads:  "Finally, the IRS closing agreement
threatens no excessive entanglement between church and state."

            There are many points in the formerly secret closing agreement
(Complaint Exhibit 1, seemingly unread by defendants' counsel) which
entangle the IRS in the operation of Scientology, and Scientology in the
operation of the IRS.  The question for the courts is not in the meaning of
"excessive," but in the purpose of contact or entanglement.  Plaintiff
argues that the contact is proper if the extent and purpose of contact is
entirely relevant to the efficient collection of taxes, and highly improper
if the smallest part of it is directed at proselytizing Scientology or
entangling the IRS in the control of Scientology.  Plaintiff notes that the
Closing Agreement gave the IRS veto power over changes in the leadership of
Scientology.

            From Complaint exhibit 3.

IV. Obligations and Undertakings During the Transition Period.
     A. Establishment of Church Tax Compliance Committee
        1. Purpose of Church Tax Compliance Committee.
        2. Membership of Church Tax Compliance Committee.
         c.  . . . . No individual member of the CTCC shall be permitted
to withdraw from service on the CTCC, except by reason of death,
being adjudicated an incompetent, or by mutual agreement of the
parties to this Agreement.

            One of my correspondents wrote thus:

"This is a dangerous precedent.  For those of us who believe in the
separation of church and state, this is extraordinarily dangerous.  The
IRS should *NOT* be in the position of telling an organization that it has
previously called "religious" who can run the organization!  To give a
comparison, it would be like telling the Archdiocese of New York that the
IRS has control over who the next cardinal will be."

            "Regular and frequent informal communications" by telephone may
have a legitimate purpose depending on the subjects discussed.

            Complaint exhibit 3:

        3. Responsibilities of CTCC.
          b. Communications.
            iii. Not withstanding the provisions for written notice in
subparagraph i., nothing shall prohibit the parties from other,
less formal modes of communication, such as the telephone. It is
contemplated that there will be regular and frequent informal
communications with respect to matters arising under this
Agreement.

            But making informers/enforcers for the IRS out of church
officials is not.

            Complaint exhibit 3:

    C. Fiduciary Reporting Requirements.

       10. Activity or inaction in contravention of this Agreement. The
CTCC shall use its best efforts to include with the Annual Report
information relating to any action or inaction by any Scientology-related
entity or individual that occurred during the year that is in
contravention of, or inconsistent with, any provision of the Code,
Treasury regulations or this Agreement, including the recognition of
exemption for certain entities contained in section III. paragraphs B. and
C. and the certifications contained in section IV. paragraph D.
Information disclosed under this paragraph shall include an explanation of
the action or inaction involved, the name of the individual or entities
involved, the date of the act or inaction, and whether, and to what
extent, the CTCC has investigated, including any findings and any actual
or planned corrective action with respect thereto.

            Prior to the agreement with the IRS, Scientology had many people
within it who believed in tax protesting and a number of them acted on those
beliefs--with the open support of Scientology.  Plaintiff is not even
slightly sympathetic to tax protesters but notes that these protestors have
been either driven out of Scientology or forced into compliance by threats
to withhold scientology services.

            A correspondent supplied me with an example:

There is a Scientologist here in Boise that just paid (within the last
12 months) $75,000.00 to Cof$ for new OT 4 and 5 (about 150 hours of
auditing).  The money came from an inheritance I was told.  Now this
fellow apparently didnt pay any taxes on the money he got- but during
the 80 or so hours of sec checks- which was deducted from his 150 hours,
it was found that he didnt pay the tax. Cof$ told him to handle that
with the IRS first- before OT 4 and 5.  He then had about 4-5 months of
amends projects to do in L.A. before he could rec and auditing.  The
thing I found interesting about this cycle was he had to make good to
the IRS *first* before he was allowed to be on the OT levels.  This is
not the way things used to be done- but I have been out of touch for a
while with the inner workings of Cof$.

This info came to me 3rd party, but I believe it to be true.

I can get you names and particulars if you think it might be of any
help....
            (Sec checks are essentially interrogation.)

            Defendants characterize plaintiff's complaint line 20-21 page 8
by stating that it "amounts to little more than an attempt 'to employ a
federal court as a forum in which to air . . . generalized grievances about
the conduct of government.' Flast v. Cohen, 392 U.S. at 106."

            While the out-of-context quote was from Flast, the reference was
to Frothingham as may be seen by citing here the full paragraph from which
this (unfairly characterized) quote was taken.

      We have noted that the Establishment Clause of the First Amendment
does specifically limit the taxing and spending power conferred by Art. I,
Section 8.  Whether the Constitution contains other specific limitations
can be determined only in the context of future cases. However, whenever
such specific limitations are found, we believe a taxpayer will have a
clear stake as a taxpayer in assuring that they are not breached by
Congress.  Consequently, we hold that a taxpayer will have standing
consistent with Article III to invoke federal judicial power when he
alleges that congressional action under the taxing and spending clause is
in derogation of those constitutional provisions which operate to restrict
the exercise of the taxing and spending power. The taxpayer's allegation
in such cases would be that his tax money is being extracted and spent in
violation of specific constitutional protections against such abuses of
legislative power. Such an injury is appropriate for judicial redress, and
the taxpayer has established the necessary nexus between his status and
the nature of the allegedly unconstitutional action to support his claim
of standing to secure judicial review. Under such circumstances, we feel
confident that the questions will be framed with the necessary
specificity, that the issues will be contested with the necessary
adverseness and that the litigation will be pursued with the necessary
vigor to assure that the constitutional challenge will be made
in a form traditionally thought to be capable of judicial resolution.  We
lack that confidence in cases such as Frothingham where a taxpayer seeks
to employ a federal court as a forum in which to air his generalized
grievances about the conduct of government or the allocation of power in
the Federal System.

While we express no view at all on the merits of appellants' claims in
this case, their complaint contains sufficient allegations under the
criteria we have outlined to give them standing to invoke a federal
court's jurisdiction for an adjudication on the merits.

            Plaintiff makes the specific allegation that the IRS
Commissioner's actions or those of his deligate--in approving the special
tax provisions for Scientology--were in excess of their authority under the
Internal Revenue Code.  Following Flast, plaintiff is entitled to standing
and may ask for injunctive relief against the IRS Commissioner or, in the
alternative and on constitutional grounds for relief, plaintiff may ask for
a declaration that--if defendant's actions are within the authority and
intent of the Code--the Code is to that extent unconstitutional and void.

            Given that the Supreme Court has spoken in Hernandez, plaintiff
would be surprised if the Court reached the constitutional merits of Section
170 of the Internal Revenue Code.

            Responding to the arguments on pages 9 and 10, plaintiff does
not expect redress from the IRS for injury due to direct Scientology
actions.  Plaintiff, however, would like to quit subsidizing Scientology and
Scientology's criminal activities through his taxes.  (For example,
Scientology has been indicted for the unlicensed practice of medicine and
abuse of a dependent adult in the death of Lisa McPherson and is spending
enormous sums defending the charges).

            Plaintiff simply fails to understand the arguments on page 11
line 15.  Unless Scientology is considered part of the IRS, how could a suit
against Scientology result in an injunction against the IRS Commissioner?

            Plaintiff also fails to understand the argument that Scientology
must be brought into the suit, especially since a damage suit against
Scientology would be brought in a state court.  Plaintiff also does not
expect Scientology to cease its efforts at injury; indeed such continues on
a daily basis, and are expected to increase with the progress of this suit.

            Plaintiff has a much more modest goal, to bring what plaintiff
believes is unconstitutional, the Scientology/IRS closing agreement and
Revenue Ruling 93-73, under review by the courts.

            In summary, the United States has waived sovereign immunity,
plaintiff has standing to bring this suit under Flast v. Cohen, under Flast
a taxpayer need not demonstrate injury, the Supreme Court indicated in Flast
that injunctive or declaratory relief may be obtained for establishment
clause cases.  There is already too much entangling the IRS with Scientology
affairs; joining Scientology as a party to this action would result in
further unconstitutional entanglement.

                              Respectfully Submitted

                              H. Keith Henson, Pro se.

Click here for some additional truth about the Scientology crime syndicate: XENU.NET

Further facts about this criminal empire may be found at Operation Clambake and FACTNet.