Subject: Final reply to IRS motion
From: Keith Henson
Date: 29 Jun 1999 04:25:46 GMT

Thanks for the last minute advice several provided. I think it is a killer reply to their motion to dismiss and will hold up at the appeal level even if the district court dismisses.

The courts are going to have to deal with the IRS/scientology deal. I was only the first to file a case on this business. Others await to see how I do. If I fail, they will see why, fix it, and try again. 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
defendants' Motion, plaintiff personally seeks no damages and
only such award as is allowed by the Internal Revenue Service's
standard reward policy or as the Court may set within its powers
to be just and proper.  One billion dollars was the figure David
Miscavige (Complaint Exhibit 1) said the IRS had sought to
collect prior to Scientology's "negotiating" a closing agreement
for 1.25% of that amount.

          Damages (if any) as a result of this suit will be
collected by defendants 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.

RRPLY TO STATEMENT OF FACTS (page 2)

          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)  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, formerly Assistant Attorney General.

          The 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.  [Exhibit C, page 11, paragraph 2]  Discovery (if permitted
by the court) will enquire if the departure of Mr. Goldberg from
Commissioner was related.  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 [2500, with a reported value of
$29 million.  Top of page 29, Complaint Exhibit 1] between the
IRS and Scientology/Scientologists resulting in the exhaustion
of the IRS's litigation budget.

          "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 references 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."  From what plaintiff knows already,
particularly from reading excerpts from the evasive depositions
of Howard Schoenfeld, James J. McGovern and three other high
ranking IRS officials in Tax Analysis v. Internal Revenue
Service, plaintiff expects to find "fraud, malfeasance or
misrepresentation of material fact" in discovery and for a
criminal case to spins off the civil case.  [See particularly
pages 9 through 19 of Exhibit C and points 21-28 of Complaint
Exhibit 2.]

REPLY TO SOVEREIGN IMMUNITY ISSUES (page 3)

          None of the cases cited by the defendants in the first
section invoked 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 was a suit about confiscated
bail money.  None of these were analogous to plaintiff's case
which is about tax policy and not the payment of specific taxes.

          A closer case is 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 that
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 plaintiff's case is 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."
          Defendants' argument citing White that the IRS is not
a suitable entity to sue is refuted by Exhibit D listing 14
suits naming the IRS as defendant between 1983 and 1994.

          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.

          Defendants' footnote 3 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 where revenue
or spending policy are unconstitutional.

REPLY TO STANDING ISSUES (page 4)

          Page 4 line 20, 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."

          Defendants cite Lugo v. Miller, 640 F. 2d 823 (6th
Cir. 1981).  This is a 6th Circuit case and not binding
authority in this district.  Research 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 is that carrying out
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.

          The notes on Bowin v. Kendrick read:

          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 a 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 on page 16 of this reply.

           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;
from Complaint Exhibit 3:

    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 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 from plaintiff's case in that
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.  From
Flast:

         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) also did not involve Establishment Clause claims and was
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.

          Plaintiff strongly disagrees and points to papers
already part of the case.  From Exhibit 3, attached to the
Complaint (and unexpectedly authenticated by 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.  (No "consistent and uniform
principles" have been announced.)  Thus the IRS closing
agreement gave Scientology (and to a lesser extent
Scientologists) a financial 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 an
"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 patently unconstitutional.
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") which mooted Tax Analysis was
done as the lessor of two evils to avoid "Discharge of guaranty.
Upon a material breach by the Service . . . ." which had no
exceptions for judicial orders.

          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.  Or perhaps those who drafted
the agreement were desperate enough to get out of Scientology's
gunsights that they were concerned about the Constitutionality
of the Closing Agreement only to hide it.

          A most serious "explicit and deliberate distinctions
between different religious organizations" that the IRS agreed
to distribute at taxpayer expense a "Church Fact Sheet" t
"governments of every nation."  (Exhibit E, IRS cover letter to
the German government.)  The world wide dissemination of a
religious tract with the imprimatur of a US government agency is
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 i
    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 letters and "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.  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.  The Closing
Agreement gives 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 plaintiff's correspondents wrote:

    "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 [Complaint exhibit 3: (3)(b)(iii)] may have a
legitimate purpose depending on the subjects discussed.

          But making informers/enforcers for the IRS out o
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 . . . .

          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 xxxxx 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$.

          (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 inserting 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 delegate--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 quite 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
Scientology abuse.  Plaintiff, however, would like to quit
subsidizing Scientology and Scientology's criminal activities
through his taxes.  (For example, Scientology has been
criminally indicted for the unlicensed practice of medicine and
abuse of a dependent adult in the death of Lisa McPherson and is
spending enormous sums on both legal and extra legal means in an
attempt to defeat civil and criminal actions.)

REPLY TO "NOT ENTITLED" (page 11)

          Page 11 arguments on standing and injunctive and/or
declaratory relief have already been answered in the context of
the Flast discussion.

          Defendants (page 11, line 28 and continuing to the
next page) seriously misstates the thrust of McCarthy v.
Marshall, 723 f.2d 1034, 1037 (1st Cir. 1983) and the related
laws as baring relief to plaintiff.  The Supreme Court noted
these laws have as their purpose "the protection of the
Government's need to assess and collect taxes as expeditiously
as possible with a minimum pre-enforcement judicial
interference, 'and to require that the legal right to the
disputed sums be determined in a suit for refund. '" Bob Jones
University v. Simon, 416 U.S. 725, 736, 40 L. Ed. 2d 496, 94 S.
Ct. 2038 (1974).  The Court also observed that "the
congressional antipathy for premature interference with the
assessment or collection of any federal tax also extends to
declaratory judgment."  Plaintiff is trying get proper taxes
collected, not to prevent them from being collected.
Defendants's contention that these laws bar the Court from
injunctive or declaratory relief which could only result in
proper taxes being collected turns both McCarthy and the law in
its head.

REPLY TO "JOINDER" (page 12)

          Defendants' argument (page 12) that Scientology must
be joined makes no sense.  Plaintiff is not asking for "full
relief" and does not expect Scientology to cease its efforts at
injury; indeed petty attempts 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
Court.

          In summary, the United States has waived sovereign
immunity, plaintiff has standing to bring this Establishment
Clause suit under Flast v. Cohen, under Flast and similar cases
a taxpayer need not demonstrate injury to have standing, the
Supreme Court ruled in Flast and related cases 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.

          For these and other reasons discussed above, plaintiff
prays the court deny defendants' motion to dismiss and allows
discovery to commence.

                                   Respectfully Submitted
Dated: 6/28/99
                                   H. Keith Henson, pro se.

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