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

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Case 1:08-cv-00269-CCM

Document 12-6

Filed 07/29/2008

Page 1 of 16

Claimant Name HU J

Social Security #
Client File No. us CNMI FICA 00256

EXHIBIT 1: FORM 843 Claim for Refund and Request for Abatement

2003 2004 2005
2006 '1 / ..

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



Case 1:08-cv-00269-CCM

Document 12-6

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Page 2 of 16

Fonn 843
(Rev. November .2005.)
Dep.rt'lint pftteTresurY
1"tim91 Revenue S'e",fe'

586 57 9284
Clairtfor Refund

and Request for Abatement
.. Se'eseparate' lnstrutlns..

OMS No. 1545-0024

your laifr involves (a) one.of thtexes shown on. Jine Sa or (bJa refund :or abatement of, penalties, Farro 843 aMy if Use or additidnstotax on line 4a.
Do not use Form 843 if your cJiin istot"

.An ovepayment of. income taxe.s;
.. A reftihdfi nfitaxable USe

(of sales) ffuel;or
Your SSN or ITIN

.. An vltulfreht of excise takes reported on Fofrn(s) L1-C, 720, 730, r 229.o~ "


' .. Cl


Nniof cllniit HU, JILIN ddress(ALJper, street, aiidroqm or sLlitEno.) PMB 504, PO Box 10000 CIO Fallon Law Offce, state; and zip cod Clfy or town; Saipan, MP 96950 Namendaddress showli on retUrn ifciiff$reritfi'm abWe

Spoi,s's.sSN o(ITIN
. .

Empoyer identification number (EIN)


PMB '68, "PO Box: 10003

Da'lmetaleph6rie huniber




mountto be' refunded

Perod~ Prepare a separate




Form;$4for each tax. period.







or abated


3a Type oftax penalty, o:r additil to tax

51 EmPloyme(it 0 Estte' DG.ift 0 EXCi~e(seein$truttjoris)
o Pel'~lty~IR9.ctioh ~
b Type of rturnfiled (see ihstruct(5nS):

o 706 0709 D94'D' ~941 0943 0945 D99-PF
4a Request for


o Other (speciM

abatement or refund ot

o Interest ~$ a result o

IHS errtS grge!ays.

Aperilty oj'.a$Jtrqn tq. taxas,.e.reslt J 6iti'eousqtice fh:J1i,, tha IHS~

b Dt~ofpireiit ~

5'Explanaon and addional'claims.Explain:whyyoublievethtsciaimshould.bealIowedi'andshow thecomputatkinof your
t: refund oraqateitenfcQfii:tejrS. .per)lty.o-r additier) tq.tei. Ilyoli rieel mtire. spcjc;e,;ftacn adlitiqpal.sheets.

Attached opinion letter



04 16 iOm

04 i 8 ZOO1


$i9nafur. if youai'e fir1g'. Frm 84to request" a'. refuidorbatmehf. relatih~ to' joiht return;, both~Utid y.ourspo'Us6 muSt
sign the claim. Giajmsfiledby corporatibns must be. e.c.companied by

Unl:et )iilaesfPiiur. rdlar:tliitl mleioriiiid ths.clilm, incILil:insacipanYiO.sdu . emeitst and,ltle'besf"m\iknOlledge id ./....
b:~~~~~_::~~:~~_~~ _~: _~~~~:~~__ _ __ _ ______ ___ _ ___ ___ ______ __d_~Jt~l_t _ ___2 ~1jtl7--- :~:~l;;..
S.ignaWe.(TTt.; ifappficble.Olaihii;.by CQrporatins mU$be sgrie~ 't' an qfc;e(;) Ot. r
$ist;;r;~.~ -. ---. --. 0- ,. c.' -. '" -.' - C - -" -. -- - c---.- - .co- -. -, -.' -. -.0. -. ,.--, - -. c-, c,- .-.. -. -. - -- - -. -.- -- - - -'-.. -. -'. - ..c. C..-'C -FQrPrlvacY.Aat anlPaperwQrk Red1l9tQIAetNptie,see separ;ten.wictiQns.
,Ca.;.Nc:. 11ii1lR

the off.cel"stte. . ' .
signed by' a

corporate offk:er.authonzec:toslgn, andtl1e signature mtlst be

6~:;OC- .-- 0'.- --. -. --. -- --...
Form ~43(RV, 11-OO$)



Page ~

Case 1:08-cv-00269-CCM


Document 12-6

Filed 07/29/2008

Page 3 of 16


a1. FederallD Number

a2. CNMI Tax ID no.


b. Senal number

g. Loc. code

h. Days out of CNMI

i. Cil coe






j. SiC

k.SOC 7752
I. Entr permit no.

To Be Filed With

Income Tax

c. Name, address and zip code of employer

US-CNM Development Corporation
PMB 68, Box 10003


2a. Income ta withheld (Chap 7)

2b. Local wage & salary

1. Wages, tips, other compensation

- S;;~,M:p 96950

ta withheld (Chap 2)

3. Social security wages



4. Social security ta withheld

d. Employee social security number
e. Employee first name and initial 5. Medicare wages & tips

6. Medicare ta withheld

. Lastname
7. Social security tips

8. Allocated tips
10. Dependent care benefits

f. Employee address and zip code
9. Advance EIC payment
11. Nonqualified plans
13. Stautry

PMB 68. Box 10003 Saipan, MP 96950

12a. See instrctions for box 12



Form 2006

0 0 0




$ $ $

Wage and


14a. Other


12c. coe




Page 3

Case 1:08-cv-00269-CCM

Document 12-6

Filed 07/29/2008

Page 4 of 16

F90T 2848
tFev. MaiPh)104)

Power of Attorney and Dclaration of Represent~tive
be hof:ied for any othertnan the IRS.

586 57 9284

No, 1545-0150 Only

Dep; TreasurY

intern.. R':ve"e Servce .. Type or prim. .. See th setrate Ihstructlns.
~ Power of Attorney
~ caiJti:Fbrm2S48\~ijJf not

Hecived bY:


Taxpayer name($)

HU JILIN 586! 57 !
Saipan, MP 96950
2 Representative(s) must sign and date this form

1 Txp.wer inf9ftiol1. Txpayer(s) sign and date this fClrmPn page

and address 8QCiI ~cur
.( J'


Oiite I J
Employer identificaion number

CIO Fallon Law Offce, PMB 504, PO Box 10000
Daytit' telepho~e number Plan riLi.rnber(ifappliclI:1)

herebyappoint(s) the following representative(s) asattorney(sHn-fact
on page 2; P,ait il.

Ale.s Ffion, E'sq. .PMB.. 504": P.O. Bx 10000' Saipan,~1P. 9950
Name. and

OAF No; ....9~9.l~:2.~_t~~i;..,...~...........

Check if new: Address

. " ax ..(3:. ........ ....,............."................., FN:. t88~ 553-334,4 No. 0
0 Telephone No. 0 Fax

Teteph9iie NQ.. .j~7.9J~~.e.~:.Q9.1;L_.........


.OAF N, ;:~~h~, .~~: _ ::: :::: :~:: :::::: ::::::::: ::: :::::
Check if riw: AddressD TelephnNQ. o

FlNo, 0


OAF Ni~ ............._...__........................

Tel.ephone N; ..~..,..,~,..,..............,.,.......

.' '. Fa No., ....,,_..__...__-._...__..._-.~_.__.__..._.....
Gheck if new: Adi:ress 0 T:elephone No, 0 Pax Nti; 0

to represent tlietaxpayer(s) before the Internel ReVenqe Servie for thE; followiiigtax matters:
$ Tax matters'
itpe,qftax Oncnie; Emplyrlnt; EXc1$E,tc;
or Civil

Penalty (seethe nstrutionsoforline 3)

Tax FQth1



94l _f; 94i-ss,

(1:040, $41,


(seethe instructions for nne~)
lst:.,2nd~.:rd..,4th q1ai:ter:s..
200$ f-hr91J9"h

'Yar(s) b,r


4, Speifi.useJ19lreC9.rc~n central!:zedl.4IIi~atiOl File (CAf).If.hepaYlrolattoxney i$'l'ob.spjficl.$enot,Jqrqed


on C.A= h.etk thi$ bax,Se, th,e,instnJti1sfo'r I.ne4,SpeCil UsesnHe.c()ldQl'f tAR. . . . . .. . . i 0

.~. ActS, a!Jh9rir~. Th~ tcpr$sei:tatN?$areauthQnz.eq to tetive ;d inspegt.c,oriftleritiatt$ ihforrntiiJj al'gt9 pedormary
andeill acts Lhat J(we)canper(orm.withresPElttothe;tax mattersdesctibed;m Ine$ton~xample the, authority

to sigo'aoy

.~r~~~h~~~~t~~qti$E:&~ta~. ....e:fJ~At~tI~~~~~~~~i3Ve; 1~~1~.1~~~thP~t41~i~~~v:)~~P~.~t~(~~e~i~$~ rturnsor return infQrmatlontoe Jhirdpar;eeetheJine!; il'$~ructi9ns fQr more il'formatibn,
i~it;~~1&~~;i~i.t~:~fl~~ i~~fQ&~R~r''-~~~d7i~, ~glh~~~t~Jttt$t~~~i
taxpayersto theextentprovided in section

partners. .


of CIi:ulaf230, SeeAhe hne.5 in$trutlons.forrEltrictions ontax matters
atorney.:. ._..c..__c.."..__...._........

.Listany'specifi(, additions rdeletions this power of

.......,;..' ..:......._........~... -_...:.--......_...oo '':..:. '......:. ...;. __""_ -...;".._:. :.........;...,;.. ........:....,.. ..,;,; ;.....:_......... .._......... ..;"';;;....... .....:..__._"-_....... ..:...... ............J ..__....;... .."_"'; '-"-'.. ..'.;... ~........ :..,;" .......................

-'''.'' -~.... ....-., ~ ....-~ ....... "-." 00_...":............. ":'' '"-;-- --... ..-~ ~_.. ....:' ..""-...-:"...':.... ....-...-=-.. -.-.-..:'"".._.... ...... -....-~~~ ......O! ...,.~ .,..~....- _ .......~-.. ....... ~--".,="~'-~:-'" ':-.r ..__.. ~......". _.... _ _.__ __~.. .......
....:"-_.. ...... ~ -....... ~"~."",~'''~'''''':'''''''''~''''~'' ':.~,-":...-.. --.. - ..:....:-.. ....,-~ ~.l'~" ,"~ .,...... ".--': ......~. "J-::...:-........ ~::--.. ":...::':.-~....:'.. oi "'..... ..,:"-...-:...':..~.. ........................ ".-,~,,,! -....... .."'........... -- -...... ~--.

6' Receipt of refund chcks, If-you want tauthonze'a representative named onlii1.:ftCr reCV$', 'r NOT TO ENDORSE
OR,CAsH. refund checks tnitlal here U . .' ameotthatrepresentative below;
Name of representa-tiiie't rece.ive' refund chk(s)

i=QrPivacyAt'all~ Pp~t)V;k f!e(juctl9J l\tltre, ~e pge'4 ftnlrst


t~tNQi .119Go;

Fmi 2S4 (ReV,~H!J041




Page 'l

Case 1:08-cv-00269-CCM
Form 284 (Rev~ 3~2004)

Document 12-6

Filed 07/29/2008

Page 5 of 16
Pge 2


586 57 9284
sent to. you and a copy to

7 Notices and communications.. Original notices and.other written commUnications will be


first representative listed on line 2.
a If you also WJlnthe 'sedono representativE Ii$t~d to receive

a copy of riQtlcsand Commiinications, chec.k this box . . ~ ~
sent to your rpresentc\tive(s), ch~k this

b If you do not want any notices or communications

box "..... ~ 0

8 Retention/revocation of pror power(slof attorney. The filing of this power of attorney automatically. revokes all earlier pover(s) ofattorneYClri file with th.lnternal ReveriueService forthe same tiim.atters and years or periods covere by
thls.dop.ument. Ifyou.c;o not want to revokee prior po;werof attorney"check here, . . .. . . . . . . . . ~ 0
YOU MUST ATTACH A.cOPY F ANY 9. Sisnature of taxpayer(s).lf a ta matter concerns POWER OF ATTORNt: YOU WANT a joiiit return,

both husband'and wife must sign if


~~~pa~ . ..
reqlJested, otherWise, see. the instructions. If receiver; edministrator, or trustee on behalfof the taxpayer; i

joint representation is
maters partner; executor on behalf this form.

signed by a corporate officer; partner guardan; tax certify .thar I have the authori to execute


. -. _.,. --0'- -:--0 - - - - --.- '---""--sigri:~ti;~""" ..' -' - -.- O' .--- --.-

tlLLJl Lit!

,._.._?!~j~J Date
Print nam of


(if applicable)

........-. ...._- .;:r~t.~~;._.' .... .....-... PIN Number
......; .'_....... ........ .......... "-.~:"'"'' .,-;- ,; ..Oo'..'- .."___.... _.. _".. ......__ ,_..

--,:'~-:-"::-~--',!,.-:-:-.-_ "l '!-

taxpayer from line 1 if other than individual

~...- ..-_._....... ..----_.. ':~ -.--- -.",:-" ~-,-,. '!--- -:-- --~ --;-,.,. --..._---,. -_.. -_._.... -~--..-""- -- _...~

Titla (if applicable)

Print Nam

PIN Nurrbr

ID IJetlaration of R-eprese"tativ.e
Pr9rarh.s.e.the ltstric:#ns fQrPaitfJ: Under penalties

t;aun:Students with aspecfqrde.rtorepre.sent taxpayrs r::rQuafifed Low..fncome TaxpayerCfinicsor the .Student Tax fnic

of perjuiy, i deplarethi;t;

. l m not currently under suspension or disbarment from practicebefrethe InternalREwenue Service;

. I amiaware ofregi;latins coitairiea in Tr$asii!Y Dep,atniiantGiitLll.atNp;2SQ(31 CfR, Part 10), asa.ehpeci; c;nctting thepractite 0fettornes,cenifid pLlblicacountants,iirnlled gnts, eritqllii;pt:nes, ariq otHers; .. i amaLiHriied to repreert thtaXpaYet(sl idntlfieq in Patt I fQt tnetaxt'attei:s)$'pecifi$ th,er.e;a(id
. I ar, qh, Qfth fqllwing:

a Attorney-a member in good standingofthebarof the highestcourt ohhe..'jursdiction shown below,

b ertified Public ccountant.ouly qualifiedJo practice as a certified pubiio,accountantin thejurlsdictionshown below;
c Enrolled Agent-enrlld asar iagcant under tl1ereqlilrementsof'Treasul' Department1rculat No:2:3
.cl Offb:er.;e'poria fial:Ciffjcer of th texpaye(:$ C5rganittien,..

e Full-ime Ei:p!PYe;a. fyll-timearnpJoyee,ofthe taPY,(

f F~iiHMen1Pr-a memoerofthetkpa-Yt$ mmeitefah1ily(i,~."spo4sei pr~nt;chJld, brothei; or sistea.
G'Eninllea Actt:ary"-nl(~iiC$:an. ctJ.atY-LiY the JpintEQatd fp-r tneriflimetit of AtlLlpr$ unr;29 li,s.Q, 1242 (tha
,authority to practice befor:the Service is limited byseeron, 10.3(0') of'Tresury Department

Circular No. 230).

h Unenrlid'Rtrl1 Prepret;.heuthorityto ptaetc bfore flielrieihai Rvntie;Service is Iimitd byTteiisury Department return n:'questlonandthe return must be:under ircular No; 230, section i O.7(c)(11(Yn, Voumust have, prepared the
exeminetion py the IR$.:. See Unenrolle R~turn, Prep.rer 9)1 2dfll:ainstr:uetion$.,


BE.RETORI\EaS~ the Prt 11 istructgfl$..

pesignatri:-Ir:sei:f bcV ltt(~)

Jqrisdtj()ri (stat)r





-J1A - ~/)/) tt 1,L.Y


Ltt\ ~\Ot'

FOr 2848 (Rev, SC2O:04~


Page S

Case 1:08-cv-00269-CCM

Document 12-6
,,~,,-'.,~ ..,."_..,, ~",~. ".~.;.~...y-.." ",.

Filed 07/29/2008

Page 6 of 16

i" ""iW~:&~:~g~-1F3'~4f~;:i1tllL ~~W:#.a~'X-f. :x li-'

,f;1l;fll :ftr'k*~*Jlj)',



G 15 7 4611Z9CHN780~Q9:,.F OQ9a8419?0;320.80(~O(O('(~1 ()



Page Ci

Case 1:08-cv-00269-CCM

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PMB 504 P.O. BOX 10000

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


Att: J. McCandless

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

contributions (FICA) that were sent by my office earlier this week. Each application


contains a Form 843 for each tax year along with their identity and the relevant W-2's. In

the Form 843 it references tls Legal Opinion. If you could note that in your receipt of
all the refud clais that this is the legal opinion so referenced.

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 extent

that 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

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

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



lu." If",)


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Case 1:08-cv-00269-CCM

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Page 8 of 16


All of the applicants are similarly situated with the same immigration status: Each applicant is a non u.s. Citizen that is a curent or former CN contract worker. A Copy

the each applicant's passport has been attached to their refund 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.

First and foremost, the geographic definition 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 CNMI. There is scant regulatory guidance as to why the
FICAtax should apply to the CN1. 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 CNMI. This ambiguity creates

an impossibility of a self-executing provision of the Covenant.


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 this statute in Section 3121(e). The Section
provides that:

Section 3121(e) State, United States, and citizen.
For purposes of

this Chapter(1) State. The term "State" includes 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.


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



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Case 1:08-cv-00269-CCM

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Page 9 of 16


"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 Northern Mariana Islands ("CNMI") was never added to the
definition 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 CNMI 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 terrtories (Puerto Rico, Virgin Islands, Guam and American Samoa), there was a Congressional act
that specifically amended the Internal Revenue Code to apply

FICA 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, all taxes imposed by the Self-Employment Contributions Act shall be collected by the Bureau of Internal Revenue under the direction of the Secreta of Treasur and 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

As stated previously in the CNMI 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, PL. 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 specificaly include the CNM in IRC Section 3121(e). However, in the



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Case 1:08-cv-00269-CCM

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Page 10 of 16

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

the IRC to include the


CNMI, 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 Northern Marana Islands is unque among the u.s. insular

possessions. As the terms of this 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. Thjs
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

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, authority of the United States towards the CN1 arises solely from the Covenant. Hilbloom v. United 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, immigration and minmum 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 United States Social Security System will on Januar 1 of the first calendar year following the the Trusteeship Agreement or upon such earlier date as may termination of 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
found 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 right to apply FICA laws to the CNM. These conditions

(1) the termnation of the Trusteeship or (2) by an agreement prior to the termnation of the Trusteeship 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. If it 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 3121(e), because if they did so, they would have included the CNMI in


Section 3121(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 CNM contmct workers is at minimum questionable and more likely than not unsupportble with the present legislative statutes for the reasons stated below.
CNMI Immgration visa. Due to ths critical difference, the application of

In 2004, the U.S. Social Security Administration (SSA) reversed its opiron 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, it 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 Northern 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


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 "..
i Ruth Van Cleve, Departent ofInterior Memorandum no. 42-3.


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order to be eligible for SS1, 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 adITssion of guest

workers under the laws of the NM would meet the first test is incorrect "lawfl
admssion 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 506.1

ii. Without an explicit statutorY amendment to IRe 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
authorized to work in the United States. The IRS has exclusive administration authority

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


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

"except as otherwse provided by law, the admstration 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..o possible in personam jursdiction, there is no explicit statutory authority over persons in the CNMJ. 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 CNMJ.

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 CNMJ would be taxed as resident aliens. However, Section 1277 (b) of the TRA 1986, P.L. 99-5143, fuer
2 Yang Bi Kei 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,

, I I i

(a) In general. Except as otherwise provided in this Section, the amendments made by this subtitle (for full classification, consult uses Tables volumes) shall apply to taxable years beginning after December 31, 1986. (b) Special rule for Guam, American Samoa, and the Northern Mariana Islands. 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


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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 ths 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
tax laws independent of the IRC with respect to income (1) from sources with, 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.5

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


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 'corporations thereof. 6

Therefore, the Tax Reform Act of 1986 rules coordinating United States and specified possessions (including CNM) taxation generally apply to taxable years beginnng afer. 1986, or as soon as the applicable possession agrees to cooperate with the United States
in tax matters. 7 Comequently, as long as an implementing agreement is not signed

between the United States and the CNMI, Section 876 of the Tax Reform Act of i 986 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

undermine 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 proposeCl 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. 127 i (a).

5 Speckingv. Comm'r, i 17 T.C. 95 (2001).
6 d.

'J"I ".


, Also See Joint Committee on Taxation, Summary ofH.R, 3838 (Tax Reform Act of 1986) as Reported by
the Senate Committee on Finance (JCS-12-86), June.

5, 1986. .




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If there is an ambiguity as to the legislative language indicates, then in accordance with
Chevron Us.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), "If


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
court does not simply impose its own construction on the statue, as would be necessar in

the absence of an administrative 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 'ali needful rules and regulations for the
enforcement of the (Internal revenue Code), 26 U.S.c. 7805(a), we must defer to his regulatory interpretations ofthe Code so long as they are reasonable." Id., 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

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 admtted in the United States and are not authonzed to work in the United States.

in. The Tax Status of CNM Contract Workers
As stated previously, Covenant Section 606(b) contains ambiguous language that states that excise taxes and self-emplQyment taxes will become applicable to the CNMI in the same maner as Guam. This language does not address the significant difference between the CNM and Guam. As stated previously, the CNM Governent controls its own immgration. In fact, Social Security regulations prohibit the issuance of Social Security Cards for work without the satisfaction of Deparent of Homeland Security (replacing Immigration Naturalization Service) Visa permittng an individual to work. 20 CFR Section 422.104. Section 422.104 states, that 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 nonigrant alien is permitted to work in the United States)" 20 CFR 422.l04(a)(2)(emphasis addedJ.
In fact the Social Security Regulation creates a presumption of authority of a


nonimmigrant 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 Deparent of Homeland Security that verifies authorization to work has been granted' e.g. an employment authorization



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

Since the CNM controls its own immgration policies, CNMI contract workers are not admitted into the United States for work puroses. Covenant Section 503 states that the immigration and natualization laws are inapplicable to the Nortern Mariana Islands.8 From the plain meanng of Covenant 503, the only 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 Knitters 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 CNMI. "Unlike any of the several States and Territories or Commonwealths, Congress has granted the CNMI 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 Northern Marana Islands, signed September, 2003; see also
Section lOl(a)(38) of

the Immigration and Nationality Act, 8 U.S.C. llOl(a)(38)). So


8 Covenant Section 506 states the following:

(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 will 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 Sction the said Act wil apply. 301 and 308 of
(c) With respect to aliens who are "immediate relatives" (as defined in Subsection 201(b) of the said Act) of United States citizens who are permanently residing in the Northern Mariana Islands all the provisions of the said Act wil apply, commencing when a claim 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 fslands will be
deemed to constitute a State as defined in Subsection 101(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 will 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.



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while Social Security has been issuing cards to CNM Contract Workers, it does so with the following adrornshment stamped upon the cards, "Valid for Work Only with DRS (formerly INS) Authorization". This stamp is on every single card issued to CNM 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 DRS work visas that will allow for the issuance of. a Social Securty Card for an alien. None of the Social Security

regulations acknowledge that the issuance of CNMI work visas satisfies the prerequisites

for obtairnng 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 CNMI and the application of the associated
provisions of the Social Security Act.

The failure of the drafer's action in Pub. 1. 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 adITtted in the CNM on work visas not issued by the
Deparent of Homeland Security, but by the Commonwealth Deparent of

Immigration. 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


admirnster the ta.

Based on the foregoing, 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. 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 tls legal opinon

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



Fallon Law Offices