Free Second Amended Complaint - District Court of Federal Claims - federal

Case 1:08-cv-00269-CCM

Document 12-2

Filed 07/29/2008

Page 1 of 19

Claimant Name Social Security # Client File No.

Zhang, Xian Li

EXHIBIT 1: FORM

843
Claim for RefuAd. and Request for Abatement

200 3/ .
2005 2006

2003 i,.

EXHIBIT 2: Copy of Passport . Copy of Social Securit Card
EXHIBIT 3: FORM 2848 Power of Attorney and Declaration of Representation

EXHIBIT 1

Page-l

Case 1:08-cv-00269-CCM

Document 12-2

Filed 07/29/2008

Page 2 of 19 FICA #

Form 843
(Rev. November 2005)
Department of the TreaSIry

00146 586 49 7000
OMS No. 1545-0024

Claim for Refund and Request for Abatement

Inteinal Revenue Serv1ce .. See separate instruètions.
Use Form 843 only if your claim involves (aJ one of the taxes shown on line 3a or (bJ a refund Or abatement of interest, penalties,

or additions to tax on line 4a. Do not use Form 843 if your claim is for. An overpayment of income taxes; . A refund for nontaxable use (or sales) of fuel; or . An overpayment of excísetaxes reported on Form(s) 11-C, 720, 730, or 2290.
Name of claimant
'C Q,

'l

Zhang, Xian Li
Address (number, street, and room or suite no.)

Your SSN or ITIN

:: .. City or town, state, and zip code Saipan, MP 96950

!

.. 0

C/O Fallon Law Office, PMB 504, PO Box 10000
(EIN)
.
.

Name and address shown on return if different from above

Daytime telephone number
(

1

Period. Prepare a separae Form 843 for each tax period 01 1 01 From 12 12003 to

)

1

31

2

Amount to be refunded or abated

12003

$902.85

3a Type of tax, penalty, or addition to tax:

1! Employment 0 Estate 0 Gift 0 Excise (see instructions)
o Penalty-IRC section ~

b Type of return filed (see instructions):

o 706 0 709 0 940 IK 941 0 943 0 945 0 990-PF
4a Request for abatement or refund of:
o Interest asa result of IRS enrrs or delays.
o A penalty or addition to tax as a

o 4720

o Other (specify)

result of erroneous advice from the IRS.

b Dates óf payment ~

5 Explanation and. additional claims. Explain why you believe this claim should be allowed, and show the computation of your tax refund or abatement of interest, penalty, or addition to tax. If you need more space, attach additional sheets.

Attached opinion letter.

POSTMARK
0416 Z007

RECEIVED
041 8 ZOD7

iR~ . PH/LA., PA

219

Signature.

If you are filing Form 843 to reuest a refund

or abatement relating to a joint return, both you and your

sign the claim. Claims 'filed by corporations must be si.gned by a corporate officer authonzed to sign, and the signature must be accompanied by the offcer's title..

spouse must

belief, it is true, correct, ànd complete.. .
Signatre (rite, if applicable. CIEims by corporations must besígned by an ofcer.) .

Under pénalesofpe~ur, Ideclarethat I have examined ths claim, iricludiiiacepanyirischedules

ataments, and; to the bestofmykrowledge and

-'1- -- ---~-G1t ~- m'3_ -- ~ --- -- _2: Blh.. --Xr:~"-" .j¿I--.._--- -..- ---....__.. -.- -_.. --.. ......--_.. -- --_.. -- ...._.. --- -......_-- -_.. --.. .._---- -_.... --.. --- --.. --_.. _.... -.. --_.. --.. ..__.. -- --- -...... --- --_.._-

1".-_

----.-~(l(/ll;r \)i\~

EXHIBIT 1

Signatre

Page a
Form

For Privacy

Act and

paperwork Reduction Act Notice.

see separate instructions.

Cat. No. 1Ö18ÖR

84 (Rev, 11-2005)

Case 1:08-cv-00269-CCM

Document 12-2

Filed 07/29/2008

Page 3 of 19

FICAH00146

Form 843
(Rev. November 2005)
Dep~tmenl of the Treasury

Claim for Refund and Request for Abatement

586 49 7000
OMS No. 1545-0024

Il1teinal Revenue Service .. See separate Instruètions.
Use Form 843 only if your claim involves (aJ one of the taxes shown on line 3a or (b) a refund or abatement of interest, penalties,
or additions to tax on line 4a~

Do not use Form 843 if your claim is for. An overpayment of income taxes; · A refund for nontaxable use (or sales) of fuel; or · An overpayment of excise taxes reported on Form(s) l1-C, 720, 730, or 2290.
Name of. claimant
't
's. I-

Zhang, Xian Li
Address (number, street, and room or .suite no.)

Your SSN or ITIN

0

C/O Fallon Law Office, PMB 504, PO Box 10000

Spouse's SSNor ITN
.
.
:

.~ City or town, state, and zip code ..

Saipan, MP 96950
Name and

Employer identification number (EIN)

. 66-0533866
:

address shown on return if different from above

Daytime telephone number
(

1

Period. Prepare a separate Form 843 for each tax period 01 I 01 From 12004 12 to

)

1

31

2

Amount to be refunded or abated

12004

$957.93

3a Type of tax, penalty, or addition to tax;
1! Employment o Estate 0 Gift 0 Excise (see instructions) o Penalty-IRC section ~ b Type of return filed

o 706 0 709 0 940 lZ 941 0 943 0 945 0 990-PF
4a Request for abatement or refund of: o Interest asa result of IRS errors or delays. o A penalty or addition to tax as a result of erroneous advice from the IRS.
b Dates of

(see instructions):

o 4720

o Other (specify

payment ~
you believe this claim

5 Explanation and additional claims. Explain why

tex refund or abatement ofinterest, penalty, or addition to tax. If you need more space, attach additional sheets.

should be allowed, and show the computation of your

Attached opinion letter.

POSTMARK

RECEIVED

() 416 Z007 0 ,11 8 Z007

IRS- PHILA., PA

219

or abatemeht relating to a joint return, both you and your.spouse must sign the claim. Claims 'filed by cörporations must be signed by à corporate officer authorized to sign, and the signature must be accompanied by the offcer's title.
Sigmtturé. If you are filng Form 843 to reuest a refund

Under p;nalties óf pèrjur, I 'Clilliê. that r have examined ths clain1, iiieludiìiacempanying schedul .
belief, it is true, correct, and complete.

ementS, and, to the best óf my knowledge and

_i______~ -~-vi. ~-------~---¿rfA. :k---M-----------------Sig~re crif~ applicable. Claims bycorportìons mus be.

signed by an ofcer.)

L , J_.._,.........-.._------~ --- \)i\~ 11".r 1,J ~'Ø ,::-~.,,
EXHIBIT 1 Page .3
Form

Signatre

.... ...._- -_.. ------....- -.... _...- ---- -.... --_........ -- -.._--.... --_.. _.... -_.. --- --- ---.. -_.. --- --- ....... .._-- --- .._---.. -----------_.. _.. ---- ---.....

For Privacy Act amfPaperwork Reduction Act Notice.

see separate instructions.

Cat. No. 1Ö18öR

84$ (Rev. i1~2005)

Case 1:08-cv-00269-CCM

Document 12-2

Filed 07/29/2008

Page 4 of 19
FICA

#00146
49

Form ,843
(Rev. November 2005)
Department of the T(ß8SUry
Intarnal .ReveriUB 581ce .. See Use Form 843

586
Claim

7000

for Refund and Request for Abatement
separate Instructions.

OMS No. 1545-0024

only if your claim involves (a) one of the texes shown on .fine3a Or (bJ a refund or abatement of interest; penalties.
843 if

or additions to tax on line 4a~
Do not use Form . An overpayment

your claim is for~ of income texes;

. A refr,md for nontatable use(o,t sales) of fuel; ör

. An overpE;ymehtof excise taxes reported on Form(s) 11-C, 720, 730, or 2290.
Name of claima.nt

Your
suite no.)

ë Zhang, Xisn Li 'I:
~ 0
ci
Address (nuinber, street, and room or

Spo
Employer identificatìon number (EIN)
:

C/O Fallon Law Office, PMB 504, PO Box 10000
Oity or town, state, and zip c.ode

t:

Saipan, MP 96950
Nameí'nd address shown on return if

66-0533866

different from.above

Daytme teløpiiOlie number

1

Period. Prepare a separate Form

From

01 / Ol

843 for each tax period 12 12005 to

1

3.1

12005

( ) 2 Amount to be refunded .or abated $ 814.86

3a Type of tax, penalty, or addition to tax:
1! Employment . 0 Estate 0 Gift 0 Excise

b Type of return filed (see instructions):

D Penalty-IRe section ,.

(se instructions)

o 706 0 709 D 940 IZ 941 0 943 0945 0990-PF
4a Request for abatement or refund of:
o Interet as í' result öflRSerrors or delayS.
o A penalty or additlon to. tax asa .result oferroneou$ advic,è from the. b D?tes. of

04720

o Other (specify

IRS.

payment ~

5 Explanation and additional claims: Explain why you believethis c.laim should be allowed, .and show the computation of your

tax refund oràbatel1ënt of iriterest, pení'lty, or addition to tax, Ifyotl nee more space, ättach additiç¡nal sheet?

Attached opinion letter.

~ ',~.; ,

POSTMARK
() 416 Z007

RECEIVED
O~ 1 8 Z007

219
IRS - PHILA., PA

Signature. If you are

filing

Förm 843

to request ä refund orabatemenI relatihg to a joint return, both you and your spouse must

sign thèclaim. Claims"filed by corpörations muSt be signed by a corporate officer authonzed to sign, and the signature must be

accompanied by.the offcer's title.
Uiider'~nàllieá of péijLl, I deCäfethatr håiie exined ths claim, írlcluâingiiCCpaÍ1\fng'sclecful

b~ift" if iStniÈ!, conèC, and complete, .

emelits, and,tothe bes of inyknowledge and

Sigriatre (fite, if applic;able. Claimll bycotpor1joo mua be signed by 1 qfc./!l;)

-.'PL__- il'~~~If----,--J:U~Y6___XiA1i---~l/- -,-------- ---...... ~- ..-_.. ....... ~_~...... ~.... ....- .......; ........~......- ~ .... -_.. -_.. ...... ..~.... _.... ............ _............ .._- --- --... ~--.... .....-.. ~..- -"i- -_.. ---.. -----~----~., _._-

_~'-I. D;l~
Date

__LlLfr___

Signature.

ForPr!X8CY Act ;m~Paperork Reduction Açt Natice, see separ.telnstuction$.

Cat.llq, 1Ó189R

F.nr 84 (Rev; 11-20Q5)

EXHIBITl

Page~

Case 1:08-cv-00269-CCM
Form 2
(Rev. March 2004)
Deparment of the Treasury

Document 12-2

Filed 07/29/2008

Page 5 of 19
OMS No, 1545-01CO
!For DRS Use OnUl!

~~W~1ì (Qf Att(Q)¡rti~y

:fid D~~~¡¡rgjtio8' ('f Rep!!esentatiw~

Interal Revenue Service ~ "IlfS Or prii1't. ii se tie separate inat"Mctions. ~ Powell of Attomey
~ Caution: Form 2848 wil not be honord for any purpose other than representation before the IRS.

Received by:

Name

Telephone

i~~ iLA¥J lJ1 J-f

Taxpayer name(s) and address ~ocial ~ecurity rrn.imbsr(s)
l-lo Ale- ie¿~ ~\Ieni 1-orLff'( IFYv v,~¡'C.ç;

'I Taxpayer information. Taxpayer(s) must sign and date this form on page 2, line 9.

Employer idel'tificaticm ni.imber

Date 1 I- . .. ,

Function

':'l~:~ r

l'iI ß '5 Ð'-\, If. ¡;. .'"", 'l ,,, f;t;(J
S ~-:'l ~"l.1 J ~1/ P c; bCl~i;

Plan number (if applicable)

hereby appoint(s) the following representative(s) as attorney(s)-in-fact:

2 Representative(s) must sign and date this form on page 2, Part II.
Name and address
CAF No. .J23.llJ.~S..9:Z2..)(lS...
Telephone No. (0J:9j...3.i-.J.:-.QQ.~.L Fax No. ..(0.1tû.._3.?:"3.::I.Q.01......

) I"\; '( (0000 . V~,5(1~~~' 1f\0D C.%CiSD
Name and àddress \

A \e 'i L s -=q \\ OVl. c5t;.

Check if new: Address 0 Telephone No. 0 Fax No. 0
rFax No. ............_._................._._......
CAF No. ...__.......__.___._................._... Telephone No. ...._....__.._...........____.....

Name and address

Check if new: Address 0 Telephone No. 0 Fax No. 0
CAF No. ..........._... _. .__. _.......... ___... __. Telephone No. ._.._...___......_............_...

to represent the taxpayer(s) before the Internal Revenuee~YVice for the following tax matters:
:3

Fax No. ..._...........__................._.._... "'l Check if nèw: Address 0 Telephone No. 0 Fax No. 0

Tax matters

((
.
.Tax Form Number

Type of Tax (Income, Employment, Excise, etc.) or Civil Penalty (see the instructions for line 3)

Year(s) or Peiiod(s)

(1040, 941,. 720, etc.)
10(,/0 J

(see the instructions for line 3)

,TV'! CavL IQ I 0K CV-"'S-e. tA K.

t0 '-A,

1.003 J 1 DOt. I 1- i;Cf 7 iDb

4 Specific use not recorded on Centralized Authorization File (CAF). If the power of attorney

on. CAF, check this box. See the instructions for line 4. Specifc uses riot recorded on C~F. . . . . . . . . ... 0

is for a specific use not recorded

5 Acts authorized. The representatives are authorized to receive and inspect confidential tainformation and to. perform any 'and all acts that I (we) can perform with respect to the tax matters described on line 3, forexample, the authority to sign any
agreements, consents, or other documents..The authority.does not incIude the power

below), the power to substitute another representative, the power to sign certain returns, or the power to execute a request for disclosure of tax returns or return information to a third part. See the line 5 instrctions for more information.
Exceptions. An unenrolled return preparer canot sign any document. for á taxpayer and may only represent taxpayers in

to receive refl,md checks (see line 6

limited situations. See Unenrolled Return Preparer on page 2 of the instructions. An enrolled actuaiy may only represent taxpayers to the extent provided in section 10.3(d) of Circular 230. See the line 5 instructions for restrictions on tax matters

partners. .

. List any specific additions or deletions to the act otherwise autorized in this power of attorney: ..._..........._.......__..._._
.. _.............................. ........ _.... -.....o_............ ___ ..___............................ __ ..___...... _.................. __......"' __.... .......... __.._.................. _.. __.... __.............. __................ __................ __........

...... -_............ --........................................ -_.. ---.............. -_.................... -_..- -_.. -- --.... -.......- -_.... .--............ --_..................-.... -......-.................... --- ----.......................... -_....
............................ -_.... _.. ................ - - - - _.. _.... - _.. - -- -- - - - -.. _.. _.. - - - _.. _......- --- - -.. - -.... -..-.. ------.. --........ - -- -........ - - ..--.. - - - --_.... - -.... _.... - - - _.._.. -- _.... -...... - - - - - - _..

6 Receipt of refund checks: I~ .you want to authqrize a repr~sentative named on line 2 to rlceive, BUT NOT TO ENDORSE

OR CASH, refunci~cks...!t\a~ere Z-,X t and list the name Of. that representative below.

Name of representative to receive refund check(s) ~ e-. l ~ iUo H I At.V 0 F h ce.
For Privacy Act and Paperork Reducton Notice, see page 4 of the instctions. Cat. No. 11980J Form 284 (Rev.

-aX7I~..r¡. ~-x1i~ ( L. r 1iJ v _ _,

3-2004)

EXHIBIST 1

Page

/

FOllTI 2848 (Rev. 3-2004)

Case 1:08-cv-00269-CCM

Document 12-2

Filed 07/29/2008

Page 6 of 19

Page ~

., Notices andl commlllIõçaijomll. Original notices and other written communications will be sent to you and a copy to the

first representative listed on line 2. . _

&l If you also want the second representative listed to rec.eive a copy of notices and communications, check this box . . ~ ff

ro If you do not want any notices or communications sent to your representative(s), checl( this box ...... . tp 0

..it 8 lRetention!le\locatioi' of prõor power(s). of attomey. The filng of this power of attorney automatically revokes all earlier";~'
power(s) of attorney on file with the Internal Revenue Service for the same tax matters and years or periods covered by :: '.'

this document. If you dlo not want to revoke a prior power of attorney, check here. . . . . . . . . . . . . ~ 0

YOU MUST ATTACH A COPY OF ANY POWER OF ATIOfiNEY YOU WANT TO REMAIN iN EFFECT.

9 Signature of tapaiyer(s). If a tax matter concerns a joint return, both husband and wife must sign If joint representation is

requested, otherwise, see the instructions. If signed by a corporate offcer, partner, guardian, tax matters partner, executor,
receiver, administrator, or trustee on behalf of the taxpayer, I certify that I have the authority to execute this form on behalf
of the taxpayer.

Bl IF NOT SIGNED AND DATED, THIS POWER OF ATTORNEY WilL BE RETURNED.

ff IJ------J\-~- _~a________ --:-- - -- - - - _ _ ______ __ ___ _ _ _ _ _ _ _ _ _ _ _ _ _______

. S~~re

--il:odiif ( -- - - - - - - -iii,.r'¡ äPiêàiòj - - - - ----

~~W -lj)lt~0ßXf.kL--_
~~):; Pnnt Name

DDDDD
PIN Number

- - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - -- -- - - - - - - - - - - - - - --- - - - - - -.. - - _.. - - -.. - --

Print name of taxpayer from line 1 if other than individual

~ Ay Signature

12 b ~ ---- -.. - --... ... .-... --.- - -- ---. ----- ----- ___MM. -- - - - - - --- -- - -- ---.- -_."

D~q

. -- - -.. - - ---_..- --_. -.... ----- -_.. -. --- --- - -- - _..-.._-

Title (if applicable)

Program, see the instructions for Par II. ' .
Under penalties of perjury, I declare that:

I'

Print Name

DDDDD
PIN Number
~;~.

Declaration of Representative

Caution: Students with a special order to represent taxpafers in Qualified Low Income Taxpayer Clinics or the Student Tax Clinic

,1/

· I am not currently under suspension or disbarment froii practice before the Internal Revenue Service; e. i am aware of regulations contained in Treasury Departent Circular No. ,230 (31 CFR, Part 10), as amended, concerning the practice of attorneys, certified public accountants, enrolled agents, éholled aètuaries, and others;
(9 I am authorized to represent the taxpayer(s) identified in Part I for the tax matter(s) specified there; and e I am one of the following:

a Attorney-a member in good standing of the bar of the highest court of the jurisdiction shown below. b Certified Public Accountant-duly qualified to practice as a certified public accountant in the jurisdiction shown below.
e Enrolled Agent-enrolled as an agent under the requirements of Treasury Department Circular No. 230.

d Offcer-a bona fide officer of the taxpayer's organization.
e Full-Time Employee-a full-time employee of the taxpayer.

f Family Member-a member of the taxpayer's immediate family (Le., spouse; parent, child, brother, or sister).
9 Enrolled Actuary-enrollec as an actuar by the Joint Board for the Enrollment of Actuaries under 29 U.S.C. 1242 (the

Treasury Department Circular No. 230). ,h Unenrollec Return Preparer-the authority to practice before the Internal Revenue Service is limited by Treasury Department Circular No. 230, section 10.7(c)(1)(viii). You must have prepared the return in question and the return must be under examination by the IRS. See Unenrolled Return Preparer on page 2 of the instructions.
.. IF THIS

authority to practice before the Service is limited by section 10.3(d) of

DECLARATION OF REPRESENTATIVE IS NOT SIGNED AND DATED, THE POWER OF ATTORNEY WIll BE RETURNED. See the Par II instructions.

Desigriation-Insert above letter (a-l)

Jurisdiction (state) or
identification

Signature

Date

tA

iYl

I

Fonn 284 (Rev.

3-2004)

EXHIBIT 1

Page ç,

L 1181HX3

LaSed

, f~Á~.1+'~~'hf~.¥ii~~ii.r2*ff~¥1WA.#~~* ~1~ifl)~~~~tfl!Q .. ,
.-:,":

..,.~.,,:t,.,,;P"'~..__..
./."..,'# ,'1\': lm /."\~4"_"¡ .~ ,. ....., 't~ I ;.:~~., / ,,)_ ¡;,l :: .,-. ',y' ,.,

.~

,:,1999 tt¿;
D¡iof'~\Ie .... . . \\
. 13 ",:"

(!~:~~:,l,:~~~~~i~~li~:~¡~;'\ ¡ '~l.1 .

, ~~i:lI_--&t-\-_":Ji.
, NOV ''.,uro ,", ~.
"''''~;''''~ï:~~'''~'

~lt. _.-.~~,:,:..--~:.~._-----.,,lA."l .J 4'.. '-'" .
PJa,c:e of

isue

POqiNZ HANG~" X I ANI. I ("" ~(-(( """((-("""" ""("~" "((

Case 1:08-cv-00269-CCM

148,4Ò14060CHN7S01 023 F041112519202 2 24"(("("02

Document 12-2

Filed 07/29/2008

Page 7 of 19

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a 1. Federal iD number

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. .. Case 1:08-cv-00269-CCM DEPARTMEN .-tOFFINANCE' 07/29/2008 Document 12-2 Filed DIVISION OF REVÈ~UE AND TAXATION

Page 8 of 19

COMMONWEALTH OF THE N ORTHERN MARIANA ISLANDS
a3.
VOID

a2. CNMI Tax 10 nuinber

6653386
,.rp

b. Serial number

g. Lo ,. code
¡ i i

h. Days out of CNMI

i. Cit. code

ti'; fa \~~j

D

000442

20
k. SOC

00
7655

CopyB
eN
For Employee's Record
2b. Local wage & salary
ta witheld (Chap. 2)

c. Employer's name, address, añd zip code

j. SiC -

L Entry permit no.

WINN.' OOJtTION
p~3i4~S:AIPAN , :M 96950
..

2300

1.W, 'ges, tips, other compensation

199894
2a. I.ncome ta withheld
(Chap. 7)

1., "'11 -' 3..So ial security wages
;

1'7Q

77

4. Social security tax withheld

,'in

G4

d. Emploýee's

er

12.521.36
5. Me!:icare wages and tips

776.37
6. Medicare tax withheld

e. Employee's

'L~.. 12~5.2L36
Last name
7, So ~ial security tips
8. Allocated tips

181.56
...
..

XI~I; ZE.I
.PPp..324~S~PAN . l4P 9690

f. Employee's address and 'Z;IP .code

9.Ad . ance EIC payment

1Ö: 'Dependent care benefite. . .-.

.' . . .

WI~ .e.~TION

11: N tiqúälified plans

;02a. See rstruetions for box 12

~ $
e
d 0

13.S ..tuory Retirement Third-part

12b.
0 0

.1 .-¡~

uplOyee plan

J" D D
14b.

sick pay

1$

E :i
U.

0

2004 Wage and Tax
W;.2CM

14a. tther

\2c.
0 d 0 0 d
0

Statement
..
". .;

1$
-

-'. ~
..

¡

12d.
e

J , ..

¡Ç '.."";;.J--".~~2~~~______

'.: - , '.¡ " . .

1$

.!
..

.-. . .. '-~--""", ':

//

i

¡

. .' - . .'. . '\: ;-". ". -, ':~' :.t"

l
(.;,

. . DEPARTME~T OF FiNANCE. .',...... ......:.

~'. .

. ~:;

,,".

f
a2,GNMITax'~.æ~:'
:~. ".;.Tk~~~'.::'~.'j:~l '

l:

DIVISION OF REV~NUE AND TAXATI.O'N' .
:,;j C;OMMONWEALTH OF THE ~ORTffERN MÅRlANA IS,LANDS . '.:,:a'§:', ~: . 'I). Senal number. g. L. c. códe h. Days qut of the.. i. Cit. ~de

j

t

r

~ 7-

r;":
¡ ¡ ¡ r ¡ ¡ ¡

c,Emplcye't ,SOO~.AElIO:~
',: ~.-...':.' :';" .~,..'.' .~;' ~ l. .

: 0 ,- ~".~~
'VOID 007?8 20 CNMt'O . r-bol
k. S0tt655

CopyB
For Employee's'

..'Ü.
i
¡ ¡

LEn~Il'
(Chap: 7) 9 . 55

Record

'j¡.

,::1ß~~~,,~' ....l~; 9.900. . ","". ',--' ",:~.
'.'i;Å-~
~:

100'

. 1, ages, tips, other compensatio.n .

lu,a51.00
3. S, cial security wages .

2a. lncome ta withheld

2b. loc wage & saiary. '.'.,';.;

ta wit~:!~~~ 2) :

l

r
i l
i

d. EriPló

e. EmpI9yee"~~t l'a~e:and.iliar

.,' .wæ~,\~~TrON
f . f. Employee's.'ad4r~s.and ~!P..ccde, . '

. ,'.. .

~e.r

.t,.

1 10,6£1.00,
i

,4. Social security ta Withtield

; '660.42
.'1 ~ i

'._~.
Last

5. M dicae wa~tuir~ . Q6
7. S~cial security tips
,

.6. Medic:are tax withheldr:54 . 44
8. Allocated tips ,.
,10. Dependent care beñefits

. . :'tal . l i:na,l'lg,

name

,

9. A vance EIC payment'

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Case 1:08-cv-00269-CCM

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i,J

FALLON LAW OFFICE
PMB 504 P.O. BOX 10000
SAl

ALEXIS FALLON, ESQ. TEL: (670) 323-0061 FAX: (670) 323-1061
April 17, 2007
Internal Revenue Service 11601 Roosevelt Blvd Philadelphia, P A 19114

PAN, MP 96950

E-MAIL: ALEXISFALLON(gUSA.NET

DpNI02
Att: J. McCandless

RE: FICA LEGAL OPINION FOR FORM 843
Dear Mr. McCandless,
Please note that ths letter is to serve as the formal opinon letter attached to all of the
Form 843 requests for refud of overpayment of the Federal Insuance Deposit Act

(J

contributions (FICA) that were sent by my office earlier this week. Each application contains a Form 843 for each ta yea along with their identity and the relevant W-2's. In the Form 843 it references ths Legal Opinion. If you could note that in your receipt of
all the refud clais that this is the legal opinion so referenced.

A. PROCEDURA POSTUR
1. All applicants have filed a Form 843 for each tax year.

2. All applicants have attached their W-2 forms to their respective Form 843s

to the extent that it is in their possession.
3. To the extentthat the IRS desires to know their filing status for income tax
puroses, the client wil provide ths data on request, or alternatively, the IRS can

contact the CNM Division of Revenue and Taxation and request verification of

fiing.
4. None of the applicants have fied U.S. income. tax retus. . Rather, all

applicants filed income tax retus with the CNM Division of Revenue and
Taxation as provided by IRe Section 935 and Covenant Section 601.

i

B. . FACTS

I."

i I,,_J

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~)

All of the applicants are similarly situted with the same immigration status: Each

applicant is a non u.s. Citizen that is a curent or former CN contract worker. A Copy of the each applicant's passport has been attached to their refud claim.
All of the applicant were issued U.S. Social Security cards with the legend "Valid For

Work Only With DRS Authorization" or "Valid For Work Only With INS
Authorization." This legend requires the card holder to present a valid U.S. work visa to
complete an

employment eligibility "Form 1-9." None of the applicants have

successfully completed Form 1-9.

C. SUMMY OF POSITION
First and foremost, the geographic defmition of FICA does not include the CNMI. This is directly contrar to how the United States Congress has applied FICA to all the other
U.S. Possessions. Secondly, the IRS has never promulgated any regulations in regard to

the applicability of FICA to the CNM. There is scant regulatory guidance as to why the FICA tax should apply to the CNM. The Covenant between the U.S. and the CNMI is clearly ambiguous with regard to the application of FICA to contract workers permtted to work only in the CNM. It is clearly ambiguous because Congress never addressed the
fudamental differences that exist between Guam and the CNML This ambiguity creates
an impossibility of a self-executing provision of

the Covenant.

D.

LEGAL POSITION

(J",

1. Application of Federal Insurance Contributions Act
The Federal Insurance Contribution Act (FICA), 26 U.S.C. §§ 3101-3127, supports the
Federal program of Old-age, Surivors, Disability Insurance ("Social Security") and the

Federal program of hospital insurance--"Medicare"). This tax is collected on services
performed by an employee "withi the United States." 26 U.S.C. § 3121(b). FICA

obligates the employer to match any of its employee's FICA contributions. The term "United States" is specifically defined for ths statute in Section 3121(e). The Section
provides that:
Section 3 i 21 ( e) State, United States, and citizen.
For puroses of

ths Chapter-

(1) State. The term "State" íncludes the District of

Columbia, the Commonwealth

of Puerto Rico, the Virgin Islands, Guam and American Samoa. (2) United States. The term "United States" when used in the geographical sense includes the Commonwealth of Puerto Rico, the Virgin Islands, Guam and
American Samoa.

1::J

The terms "State" and "United States" define the geography of the IRS' collection authority to administer the FICA ta. As a consequence of ths definition, FICA applies by its own terms to the Virgín Islands, Guam, Puerto Rico and' American Samoa and

2

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(,-=)

"Social Security Taxes" (i.e. taxes imposed by FICA) and is therefore collected in those territories in the same maner as the States.

The Commonwealth of the Nortern Mariana Islands ("CNMI") was never added to the
defintion of "the United States", or to the term "state" as found in Section 3121 ( e).

Without clear Congressional action amending Section 3121 to include the CNlv in the definition of either state or geography sections, it creates an ambiguity. Unlike what occured legislatively in the other U.S Territories, where there was clear legislative
action. This omission is a significant distinction from the other Terrtories.

At ths time, it would be prudent to review the enabling legislation makg FICA
applicable to the U.S. Territories. In every instance of the application to the terrtones
(Puerto Rico, Virgin Islands, Guam and American Samoa), there was a Congressional act that specifically amended the Internal Revenue Code to applyFICA to those Territories.
When the U.S. Congress applied FICA to the Virgin Islands and Puerto Rico, it did so in
the Revenue Act of 1950, Pub. L. No. 50-814. The House Committee Report to this Act stated:

The House bil and Senate amendment both provided that, notwthstading any other provision of law respecting taxation in the Virgin Islands or
Puerto Rico, al taxes imposed by the Self-Employment Contributions Act

()

the Secreta of Treasur and

shall be collected by the Bureau of Internal Revenue under the direction of shall be paid into the Treasury of United

States as internal-revenue collections. H. R. Committee Report H. R.
8920 (emphasis added).

With regards to Gua and American Samoa, U.S. Congress in Pub. L. No 86-778 Sec. 103, specifically amended section 202(i) of the Social Security Act by strikng out "Puerto Rico or the Virgin Islands" and inserted in lieu thereof "the Commonwealth of Puerto Rico, the Virgin Islands, Guam and American Samoa." See also H.R. Rep.No. 2165, 86th Cong., 2d Sess. 18 (1960) (conference report)(Guam and American Samoa); and S. Rep.No. 1669, 81st Cong., 2d Sess. 17 & 292 (1950) (Puerto Rico and the Virgin Islands). All these amendments were eventually codified into what is today, IRC Section
3121(e).

As stated previously in the CNlv matter, the U.S. Congress has not taken any legislative

action to amend the Internal Revenue Code, as Congress has done for Puerto Rico, American Samoa, Guam' and the Virgin Islands. As for the arguent of legislative
oversight, such a position is incredulous as the U.S. Congress has amended IRC Section
3121 seventeen times since the passage of

the Covenant in 1978. In 2003, P.L. 108-121;

in 2000, P.L. 106-554; in 1998, P.L. 105-206; in 1997, P.L. 105-61; in 1996, P.L. 104188; in 1994, P.L. 103-387; in 1993, P.L. 103-178; in 1992, P.L. 102-572, in 1990, P.L.

101-508; in 1989, P.L. 101-239; in 1988, P.L. 100-647, in 1987, P.L. 99-514, in 1984,

()

P.L. 98-369; and in 1983, P.L. 98-118. Congress, had no fewer than' seventeen
opportties to specifically include the CN in IRC Section 3121(e), However, in the

3

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same timeframe the U.S. Congress has amended other sections of

the IRC to include the

;"._J

CNlv, for example IRC Sections 881, 931, 935 and 937.
B. Effect of

Northern Mariana Islands in Political Union with the United States of America
the Covenant to Establish a Commonwealth of

The Commonwealth of the Nortern Marana Islands is 1.que among the u.s. insular possessions. As the terms of ths political union were negotiated between the paries and

ratified in a plebiscite, and subsequently approved by the Senate and the full U.S,
Congress in Pub. L. No. 94-241, 90 stat. 263 (1976), codified at 48 U.S.C. §1801. This
agreement is commonly known as the Covenant To Establish a Commonwealth of the

Nortern Mariana Islands in Political Union with the United States of America
("Covenant").

On November 3, 1986, with all of the terms of the Covenant in effect, the United States terminated the Trusteeship Agreement with a Presidential Proclamation. United States

ex. reI. Richards v. Guerrero, 4 F.3d 749 (9th Cir. 1993). Curently, authonty of the United States towards the CNMI arises solely from the Covenant. Hilb100m v. Uiúted

States, 896 F.2d 426 (9th Cir. 1990). To fuher the goal of CNM self-governance,
Covenant Section 105 provides that cert provisions of the Covenant may only be

modified with the joint consent of the U.S. and the CNMI. With regards to taxation, immgration and minimum wage, the Covenant may be amended by unlateral action of

()

Congress, but only by specific reference to the relevant Covenant Sections.

I. Covenant Section 606(b) and the applicabilty of FICA
Covenant Section 606(b) provides that:

the United States which impose excise and self-employment taxes to support or which provide benefits from the Uiúted States Social Security System will on Januar 1 of the first calendar year following the termination of the Trusteeship Agreement or upon such earlier date as may be agreed to by the Governent of the Northern Mariana Islands and the
Those laws of

Governent of the United States become applicable to the Nortern
Mariana Islands as they apply to Guam. (Incorporating amendments

fowid in Pub. L. No. 98-213, § 9)
Under this Section, one of

two possible conditions precedent must occur before Congress
precedent were either

has the nght to apply FICA laws to the CNM. These conditions.

(1) the termation of the Trusteeship or (2) by an agreement prior to the termnation of

the Truteeship between the United States and the governent of the Northern Mariana
Islands. The language of Section 606(b) is conspicuous with the use of

the word "will".

This could be interpreted that Congress wished to create a self-executing provision for

the application of FICA to the CNMI upon the occurence of either of these events, Under this interpretation, when the Truteeship over the CNMI was termnated on
._-)

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'-\.
.......)

November 3, 1986, the laws that impose excise and self-employment taxes could then be imposed.
The central issue of this matter is whether Covenant Section 606 (b) was sufficiently

clear to be self-executing, and even if this clause is found to be self-executing, did ths clause encompass the significant differences that exist between Gua and the CNMI.
Arguably, to rely on Section 606(b) exclusively as providing suffcient legislative FICA to the CNMI is in direct confict with the legislative authority for the application of history surounding the application of FICA to the other U.S. Possessions. As stated previously, in every instance Congress specifically amended the applicable sections of the Internal Revenue Code to apply FICA to these areas. Even if ths Covenant section

provided sufcient legislative authority, it did not address the actual mechancs as to which Internal Revenue Code sections would apply and in what maner these sections
would apply.

Moreover, Section 606(b) by itself does not amend the existing statutes that apply FICA to the CNM. Ifit did, IRC Section 3121(e) would include the CNM in the definition of "state" and "United States" in its laundry list. The Research Institute of America and other ta legal authorities have never referenced Covenant Section 606(b) as amending

IRC Section 312l(e), because if they did so, they would have included the CNMI in

()
'--"

Section 3l21(e).

The phrase "as they apply to Guam" creates a latent ambiguty. Guam is not in charge of its own immigration. All of the contract workers who are in Gua obtain a U.S. Visa

issued by the Deparment of Homeland Security (replacing the Immigration
Natualization Service (IS)). Unlike Guam, contract workers enter the CNM enter on a

FICA to CNMI CNMI Immgration visa. Due to ths critical difference, the application of contract workers is at minimum questionable and more likely thannot unsupportble with the present legislative statutes for the reasons stated below.

In 2004, the U.S. Social Security Administration (SSA) reversed its opinon of coverage

of CNMI foreign contract workers. Whle the enabling language of the revised
regulations states that ths is the first time that U.S. Social Securty has addressed the coverage issues of CNMI Foreign Contract workers it is in error. Attached hereto is an
excerpt of the VanCleve Memorandum 1, ìt this memorandum Ruth VanCleve references "HHS advises informally that its regulations and guidelines treat national and citizens so

that Samoans in the States would thereby be eligible. This section, however, has the effect of excluding the large alien population in the Nortern Mariana Islands, where

such aliens, who have entered the Nortern Marianas for a temporar period for
employment, are believed now to outnumber local residents. Because under the Covenant federal immigration laws do not apply to the Northern Mariana Islands, these workers are

(')
\'0_-

not aliens "lawflly admitted for permanent residence" as the phrase is used in federal law. They thus do not meet the statutory requirement, and alien temporar workers in the Nortern Mariana Islands are therefore ineligible for SSI benefits. (citing HHS ".....In
i Ruth Van Cleve, Departent ofInterior Memorandum no. 42-3.

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'-J

order to be eligible for SSI, a non-citizen (or national) must be either (1) "Lawfully admitted., . for permanent residence" or (2) "permanently residing .. .under the color of law" (other wise known as PRUCOL). However, (any) suggestion that admission of guest

workers under the laws of the NM would meet the first test is incorrect "lawful
admission for a temporar period, no matter how long, does not satisfy ths test.")
It is Congress' job to clarif the application of ths tax and not the Agency's sole

discretion to apply jurisdiction. This analysis reversed their prior decision in the SSI . benefits area and is not considering the express exclusion of the CNMI from the Immigration Nationality Act found in the Covenant Section 503(a) where the Covenant
excludes the application of

INA Section 506.2

ii. Without an explicit statutory amendment to IRC Section 312l(e). the Internal Revenue Service does not have any jurisdiction to enforce the collection of this tax on CNM Contract workers who are not present in the
United States and not authorized to work in the United States.

The territorial application of the FICA tax would, if IRC Section 3121(e) had been
amended, satisfy in rem

jurisdiction. Quite simply, without a specifc amendment to IRC Section 3121(e), the IRS lacks in rem jurisdiction to enforce the collection of the tax

agaist CNMI Contract Workers who are not present in the United States and not

o

authorized to work in the United States. The IRS has exclusive admnÌstration authority

over the Intern Revenue Code, as codified in Title 26. IRC Section 7801 provides that

"except as otherwse provided by law, the adrstration and enforcement of ths title
shall be performed by or under the supervision of the Secretar of the Treasur." So failing explicit statutory authority of granting jurisdiction in rem, the secondary method of taxation is jursdiction in personam.

With regards to possible in personam jursdiction, there is no explicit statutory authority over persons in the CNMI. Typically, IRC Section 876 grants the IRS jurisdiction over resident aliens in U.S. possessions. For reasons stated below, IRC Section 876 is not applicable to the CNMI.
The Tax Reform Act of 1986 (TRA 1986) amended IRe Section 876 to provide that bona

fide residents of Puerto Rico, Guam, American Samoa or CNMI would be taxed as
resident alens. However, Section 1277 (b) of the TRA 1986, P.L. 99-5143, fuer
2 Yang Bì Keì v. American Intern'l Knitters Corp" 789 F. Supp 1074 (D.N,Mar.i. 1992).

3 Application of Oct. 22, 1986 amendments; special rules, Act Oct. 22, 1986, P .L. 99-514, Title XII,

Subtitle G, § 1277, 100 Stat. 2600; Nov. 10, 1988, P.L. 100-647, Title I, § 1012(z), 102 Stat. 3530,
provides:

(.)
, , ! I

(a) In general. Except as otherwise provided in this Section, the amendments made by this subtitle (for full classification, consult USCS Tables volumes) shall apply to taxable years beginning after December 3 i, 1986. (b) Special rule for Guam, American Samoa, and the Northern Mariana Islands. The
amendments made by thìs subtitle shall apply wíth respect to Guam, American Samoa, or

the Northern Mariana Islands (and to residents thereof and corporations created or
6

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provided that"the amendments made by this subtitle shall apply with respect to Guam,

American Samoa, or the Nortern Mariana Islands (and to residents thereof and
corporations created or organzed therein) only if (and so long as) an implementing

agreement under Section 1271 (note to tms Section) is in effect between the United States
and such possession." (Emphasis added.)

TRA 1986 Sections 1271, 1272, and 1277 are encompassed in TRA 1986 Title XII ~Foreign Tax Provisions, Subtitle G -- Tax Treatment of

Possessions. TRA 1986 Sections

1271 and 1272 are in par I of subtitle G. Par I specifically addresses the "Treatment of Guam, American Samoa, and the Northern Mariana Islands." TRA 1986 Section 1271, does not appear in, or make any changes to the IRC. Rather, that provision grants Guam,
American Samoa, and the CNM, under certain conditions, the right to enact their own
ta laws independent of the IRC with respect to income (1) from sources withn, or

effectively connected with the conduct of a trade or business withi, the possession, or
(2) received or accrued by a resident of the possession.4 TRA 1986 Section 1271(b) makes that grant of authority applicable to Guam, American Samoa, or the CNMI provisional on the existence of an implementing agreement between the United States and such possession.s

TRA 1986 Section 1272 amends old Section 876 as well as other Code provisions not pertinent here. In TRA 1986 Section 1277(b), Congress makes the application of those

o

amendments conditional on the existence of the requied implementation agreement

between the United States and the specified possession, but only as to Guam, American Samoa, and the CNM, and the residents and torporations thereof.6

Therefore, the Tax Reform Act of 1986 rules coordinating United States and specified possessions (including CNM) taxation generally apply to taxable years begimiing afer. 1986, or as soon as the applicable possession agrees to cooperate with the United States in tax matters. 7 Consequently, as long as an implementing agreement is not signed between the United States and the CNMI, Section 876 of the Tax Reform Act of 1986 does not apply to the CNM.
A carefu review of the language .of Covenant Section 606(b) wil demonstrate that there
is no conferment to the Internal Revenue Service for enforcement which would

undermie the deference afford to U.S Treasur regarding promulgation of regulations.

But U.S. Treasur has never promulgated reguations on this issue. The only regulations that have been proposed is by the Social Security Administration. .

organized therein) only if (and so long as) an implementing agreement under Section
1271 is in effect between the United States and such possession.

26 USCS § 931 note. 4 TRA 1986 sec. 1271 (a).
5 Speckíngv. Comm'r, i 17 T.C. 95 (2001).
6 ¡d.

7 Also See Joint Committee on Taxation, Summary ofH.R, 3838 (Tax Reform Act of 1986) as Reported by

i ()
i i I i

the Senate Committee on Finance (JCS-12-86), June.

5, 1986. .

7

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If there is an ambiguity as to the legislative language indicates, then in accordance with
;....~-

--)

Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), "If

the

intent of Congress is clear, that is the end of the matter; for the cour, as well as the
agency, must give effect to the unambiguously expressed intent of Congress. If, however, the cour determines Congress has not directly addressed the precise question at issue, the
cour does not simply impose its own construction on the statue, as would be necessar in

the absence of an admnistrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the questions for the cour is whether the agency's answer is based on a permssible construction of the statute." Id. at 843. In Cottage Savings Ass 'n v. Commissioner, 499 U.S. 554, 560-561, 113 L.Ed. 2d 589, 111 S. Ct. 1503 (1991), the Supreme Cour conspicuously did not cite Chevron and appeared to apply the traditional rule of tax deference: "Because Congress had delegated to the

Commissioner the power to promulgate 'all needful rules and regulations for the
enforcement of the Llnternal revenue Code), 26 U.S.c. § 7805(a), we must defer to his
regulatory interpretations of

the Code so long as they are reasonable." rd., at 560-61

Please note the enabling language in the application of FICA to Puerto Rico and the Virgin Islands where Congress was quite explicit in its conferment of authority of the U.S. Treasur to enforce and retain the collection of monies for FICA. The same is tre
for the amendments for Guam and American Samoa. The absence of an explicit conferment coupled with the failure of Covenant Section 606(b) to amend the relevant

C)

Internal Revenue Code sections, means the IRS does not have the requisite explicit jurisdictional authority to enforce the FICA tax as to the CNM Contract Workers who are not admitted in the United States and are not authorized to work in the United States.

IÜ. The Tax Status of CNM Contract Workers
As stated previously, Covenant Section 606(b) contains ambiguous language that states that excise taxes and self-employment taxes will become applicable to the CNMI in the _ same maner as Guam. This language does not address the significant difference between the CN and Guam. As stated previously, the CNM Governent controls its own immgration. In fact, Social Security regulations prolubit the issuance of Social Security Cards for work without the satisfaction of Deparent of Homeland Security (replacing Immigration Naturalization Service) Visa permttng an individual to work. 20

CFR Section 422.1 04. Section 422.104 states, tht an alien is eligible for a Social Security number where "An alien lawfly admitted to the United States for permanent

residence or under other authority of law permtting you to work in the United States (§ 422.105 describes how we determine if a noniigrant alien is permitted to work in the United States)" 20 CFR 422.l04(a)(2)(emphasis added).
In fact the Social Security Regulation creates a presumption of authority of a

nonimmgrant alien to engage in employment if the individual alien provides a Form 194. "...(I)f your Form 1-94 does not reflect a classification permtting work, you must submit a curent document authorized by the Deparment of Homeland Security that verifies authorization to work has been granted' e.g. an employment authorization

(:)
8

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.:)

document, to enable SSA to issue an SSN card that is valid for work." 20 C.F. R.
422.105(a).

Since the CNM controls its own immgration policies, CNM contract workers are not admitted into the United States for work puroses. Covenant Section 503 states that the 8
immigration and natualization laws are inapplicable to the Nortern Mariana Islands.

From the plain meanng of Covenant 503, the OiùY exceptions from the inapplicability of the Immgration Natualization Act are those listed in Covenant Section 506. As you wil note, there is no reference to the CNM work visas issued to the alien contract workers

being designated or approved by the INS. In Yang Bi Kei v. American International Kntters Corporation et. al., 789 F. Supp. 1074 (D.N.Mar.I. 1992), the U.S. District Cour considered the issue of the imigration power of the CNM. "Unlike any of the several States and Territories or Commonwealth, Congress has granted the CNW authority over
its oWn immigration."

Foreign contract workers enter into the CNMI on a CNMI work visa that does not
provide them access to, nor the right to work in the United States. (See Memorandum of

Agreement Between the U.S. Deparent of Interior, Offce of Insular Affairs and the Commonwealth of the Nortern Marana Islands, signed September, 2003; see also
Section 101(a)(38) of the Immigration and Nationality Act, 8 U.S,C. §1101(a)(38)). So
8 Covenant Section 506 states the following:

C)

(a) Notwithstanding the provisions of Subsection 503(a), upon the effective date of this

Section the Nortern Mariana Islands wil be deemed to be a par of the United States
under the Immigration and Nationality Act, as amended for the following purposes only, and the said Act wil apply to the Nortern Mariana Islands to the extent indicated in each this Section. of the following Subsections of

(b) With respect to children born abroad to United States citizen or non-citizen national parents permanently residing in the Northern Mariana Islands the provisions of Séction the said Act wil apply. 301 and 308 of
(c) With respect to aliens who are "immediate relatives" (as defined in Subsection ZOI(b)

of the said Act) of United States citizens who are permanently residing in the Northern the said Act wil apply, commencing when a claim Mariana Islands all the provisions of is made to entitlement to "immediate relative" status. A person who is certified by the Government of the Northern Mariana Islands both to have been a lawful permanent
resident of the Northern Mariana Islands and to have relationship denoted herein on the effective date of been admitted to the United States for lawfl permanent

had the "immediate relative"

this Section wil be presumed to have that date without residence as of

the requirement of any of the usual procedures set fort in the said Act. For the purposes

of the requirements of judicial naturalization, the Northern Mariana Islands will be
deemed to constitute a State as defined in Subsection 10 I (a) paragraph (36) of the said

Act. The Courts of record of the Northern Mariana Islands and the District Court for the

Northern Mariana Islands will be included among the court specified in Subsection 310(a) of the said Act and wil have jurisdiction to naturalize Rersons who become
eligible under this Section and who reside within their respective jurisdictions.

(.~)

(d) With respect to persons who wil become citizens or nationals of this Covenant or under this Section the loss of

the United States under Article II of

nationality provisions ofthe said Act wil apply.

. 9

EXHIBIT 1

pageJ.

Case 1:08-cv-00269-CCM

Document 12-2

Filed 07/29/2008

Page 19 of 19

,dJ

while Social Security has been issuing cards to CNM Contract Workers, it does so with the following admonishment stamped upon the cards, "Valid for Work Only with DRS

Contract workers. The very face of the Social Security Card upholds this analysis that working in the CNM is not workig in the United States. See Evidence Requirements
20 C.F. R. 422.107. Section 422.107 states clearly the need for DHS work visas that will allow for the issuance of a Social Securty Card for an alien. None of the Social Security

(formerly INS) Authorization". this stamp is on every single card issued to CNM

regulations acknowledge that the issuance of CN:M work visas satisfies the prerequisites

for obtaining a right to work and pay Social Security Tax in the United States, The
absence of regulations is the result of Congressional failure to amend the Federal

Insurance Contribution Act to include the CNM and the application of the associated
provisions of the Social Security Act.

The failure of the drafer's action in Pub. L. 98-213 (the Amendment to §606(b) of the
Covenant), is that it created more confsion and did not provide definitive guidance to

the treatment of persons who are ad!1tted in the CNM on work visas not issued by the
Deparent of Homeland Security, but by the Coironwealth Deparent of

Iirigration. Moreover, while the amendment is reflective of Congressional intent with respect to the application of various social security taxes, it is not a specific amendment
that is requied for statutory constrction in matters of taxation. At best, ths section

could be termed "tax by implication", which not only violates the U.S. Constitution, but
also fails to provide the necessar statutory authority for the Internal Revenue Service to

()

administer the ta.

E. CONCLUSION
Based on the foregoing, the Covenant between the U.S. and the CN:M is clearly ambiguous with regard to the application of FICA to contract workers permtted to work

only in the CNM. This ambiguity coupled with Congressional failure to amend IRC Section 3121 to include the CNMI creates a reasonable basis for the refud requests for
their respective FICA contributions.
This matter wil be fuer addressed in other communcations with the Internal Revenue

Service and the Social Security Admistration. Please be advised that ths legal opinon

covers all the applicants for a refud claims from this offce as referenced in each Form
843 processed by ths offce.

',~~)

~~
Sincerely,

Fallon Law Offices

10

EXHIBIT 1

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