JIMMY L. STANDLEY, ET AL., PETITIONERS V. UNITED STATES TAX COURT
(COMMISSIONER OF INTERNAL REVENUE, REAL PARTY IN INTEREST)

   No. 86-2042

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

   Memorandum for the Respondent in Opposition

   Petitioners contend that the court of appeals erred in refusing to
issue a writ of mandamus requiring the United States Tax Court to stay
proceedings in cases brought by petitioners for redetermination of
their tax liabilities, pending resolution of another lawsuit brought
by petitioners in another court seeking damages and injunctive relief.

   1. a. The individual petitioners are members of the American Law
Association (ALA), an organization created as part of a tax shelter
scheme that utilized foreign trusts to attempt to evade federal income
taxes.  See generally United States v. Dahlstrom, 713 F.2d 1423,
1425-1426 (9th Cir. 1983), cert. denied, 466 U.S. 980 (1984).  The
other petitioners are foreign trusts formed by the individual
petitioners as part of that scheme.  Both the Ninth Circuit and the
Tax Court have held that such foreign trusts are ineffective to shift
income from the creator to the nontaxable foreign trusts.  Akland v.
Commissioner, 767 F.2d 618 (1985);  Zmuda v. Commissioner, 731 F.2d
1417 (1984);  Professional Services v. Commissioner, 79 T.C. 888
(1982).

   The Internal Revenue Service (IRS) examined petitioners' income tax
returns and determined deficiencies in income tax against each of the
petitioners.  Each petitioner filed a petition with the United States
Tax Court seeking a redetermination of the deficiencies asserted by
the IRS.  The Tax Court has consolidated all the petitioners' cases
for trial, and that trial is now scheduled for November 2, 1987.

   b. Petitioners, and others, filed a separate suit in the United
States District Court for the District of Colorado seeking damages and
injunctive relief against various named and unnamed employees of the
IRS and the Department of Justice.  That lawsuit was transferred to
the District of Arizona, where it is now pending (Nordbrock v. Jensen,
No. CIC-86-687-PHX-CLH).  Petitioners alleged in the complaint that
the defendants had unlawfully conspired against them to deprive them
of various constitutional and statutory rights, including, inter alia,
their First, Fourth and Fifth Amendment rights and their right to a
jury trial to determine the correct amount of their federal tax
liabilities.  See C.A. Pet. for Writ of Prohibition and/or Writ of
Mandamus (Mandamus Pet.), Exh. H.  The latter claim rested on an
allegation that the defendants had inflated the amount of the asserted
deficiencies in excess of the true tax liabilities, yielding an amount
that the petitioners could not pay.  Petitioners contended that this
alleged comspiracy deprived them of their right to pay the full amount
of the deficiencies and to litigate the correctness of the assessment
in a refund suit in federal district court or the Claims Court.  See
Mandamus Pet. at 10, 12.

   c. On January 30, 1987, petitioners filed a motion seeking a
continuance of the Tax Court trial (then scheduled for April 20, 1987)
until resolution of their damage suit in the district court.  See
Mandamus Pet., Exh. A.  The Tax Court denied the motion on February 6,
1987.  On March 6, 1987, petitioners filed a Petition for Writ of
Prohibition and/or Writ of Mandamus with the court of appeals seeking
an order directing the Tax Court to stay its trial proceedings.
Petitioners asserted that they would suffer irreparable injury if the
Tax Court proceedings were not stayed because an unfavorable decision
in that court might have an adverse collateral estoppel effect on
their pending damage action in the district court.  Petitioners argued
that this eventuality would deprive them of their right to have a jury
determine their right to damages.  See Mandamus Pet. at 21-25.  The
court of appeals denied the petition on March 23, 1987 (Pet. App. 1a).

   2. The court of appeals correctly denied the petition for a writ of
mandamus or prohibition, and there is no reason for this Court to
review that denial.  "The remedy of mandamus is a drastic one, to be
invoked only in extraordinary situations.  * * * (T)he writ 'has
traditionally been used in federal courts only "to confine an inferior
court to a lawful exercise of its prescribed jurisdiction or to compel
it to exercise its authority when it is its duty to do so."'" Kerr v.
United States District Court, 426 U.S. 394, 402 (1976) (citations
ommitted);  see also Allied Chemical Corp. v. Daiflon, Inc. 449 U.S.
33, 34-35 (1980);  Will v. United States, 389 U.S. 90, 95 (1967).
Moreover, the party seeking mandamus must demonstrate that his right
to the writ is "clear and indisputable." Kerr, 426 U.S. at 403;
Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384 (1953).

   Petitioners plainly fail to satisfy these requirements.  They do
not -- and cannot -- maintain that the Tax Court would exceed its
jurisdiction in proceeding to trial on the issues raised by
petitioners' petitions in that court;  nor do they contend that the
Tax Court has an absolute duty to grant petitioners' request for a
continuance.  On the contrary, the Tax Court's exercise of its
discretion to control its own docket is a matter that "ought not to be
overridden by a writ of mandamus.  Where a matter is committed to the
discretion of a * * * (trial) court, it cannot be said that a
litigant's right to a particular result is 'clear and indisputable.'"
Will v. Calvert Fire Ins. Co., 437 U.S. 655, 665-666 (1978) (plurality
opinion (footnotes ommitted)).

   In any event, the reasons urged by petitioners in seeking a writ of
mandamus provided little basis for the Tax Court to grant a
continuance.  The Tax Court's jurisdiction, with certain exceptions
not pertinent here, is limited to determining deficiencies or
overpayments in tax.  See Sections 6214 and 6512(b) of the Internal
Revenue Code (26 U.S.C.).  Accordingly, the Tax Court's decisions in
petitioners' consolidated cases will not resolve the allegations made
in petitioners' suit for damages against individual employees of the
IRS and the Department of Justice, which is founded on the claim that
these individuals conspired to deprive petitioners of various
constitutional and statutory rights.  See Mandamus Pet., Exh. H.  /1/
Thus, the Tax Court acted quite reasonably in denying petitioners'
request for a continuance, and there is no reason whatsoever for this
Court to review the court of appeals' refusal to issue an
extraordinary writ directing the Tax Court to stay the trial.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   AUGUST 1987

   /1/ We note that petitioners' claim that being forced to litigate
in the Tax Court would deprive them of a "constitutional right to have
the facts determined by a jury" (Pet. 12) is misconceived.  It has
long been established that there is no constitutional right to a jury
trial in a suit against the United States.  See Galloway v. United
States, 319 U.S. 372, 388 (1943);  McElrath v. United States, 102 U.S.
426, 440 (1880).  The right to a jury trial to which petitioners
allude, i.e., in a tax refund suit brought in federal district court
against the United States (see 28 U.S.C. 2402), is a statutory right
conferred by Congress in 1954.  See Act of July 30, 1954, ch. 648, 68
Stat. 589.