Can someone avoid New Mexico income tax by reporting zero income on tens of thousands of dollars of wages and arguing he isn't a 'taxpayer,' that Federal Reserve Notes can't be taxed, or that a self-styled 'private judgment' cancels the tax?

Plain-English summary

A man who reported zero income on more than $60,000 of wages, and argued he was not a "taxpayer," that Federal Reserve Notes could not be taxed, and that a self-styled "private judgment" canceled his tax, lost on every point. Protest DENIED.

Patrick Youngman filed a 1999 New Mexico personal income tax return reporting zero income even though his withholding statements showed $60,502.47 in wages. The Department assessed the additional income tax ($1,439), penalty, and interest. Youngman used a series of tax-protester tactics: he filed a homemade "Administrative Judgment" against a former Cabinet Secretary in the county records, refused to treat the scheduled hearing as a hearing, sent a "Notice of Fault," and threatened to report the hearing officer to federal authorities. He appeared at the hearing but declined to testify or present evidence, saying he had come to have the Department answer his questions. The hearing officer explained that the burden was his and worked through each argument.

He, not the Department, had to prove the assessment wrong

An assessment is presumed correct, and the taxpayer must overcome that presumption with facts or legal authority (Section 7-1-17(C)); a taxpayer cannot shift the burden to the state by simply asserting there is "no evidence" against him (Hannahs v. Anderson). The record showed Youngman had a New Mexico address, acknowledged being an "inhabitant," had New Mexico tax withheld, and filed a New Mexico return — all pointing to residency, which he offered no evidence to dispute. And a "taxpayer" under Section 7-1-3(W) includes any person against whom an unpaid, unabated assessment has been made, so he plainly qualified.

Federal Reserve Notes are taxable, and wages are not "income from federal obligations"

Congress expressly allows states to tax Federal Reserve Notes as money (31 U.S.C. § 5154; Smith v. Davis). Youngman's reliance on Section 7-2-2(N)(4), which excludes "income from obligations of the United States," missed the point: his pay was income from personal services, not income from a federal obligation, so the exclusion did not apply.

The "private judgment" and "UCC discharge" theories had no legal basis

Youngman claimed the Department "dishonored" a private administrative proceeding he had filed against a former Secretary. No law lets citizens engage private hearing officers to enter judgments against officials, and none requires officials to respond. He also claimed to "discharge" the tax under the Uniform Commercial Code (Section 55-3-603), but a tax assessment is not a negotiable instrument; tax payment is governed by the Tax Administration Act, which lets a taxpayer either protest without paying or pay and seek a refund (Section 7-1-23). His conditional "offer to pay" was really an attempt to postpone the hearing and did not affect his liability.

He had the information he claimed to lack

Youngman said the Department never defined "income." But he quoted the net-income statute himself and argued about its subsections, and the Department's attorney had spelled out the basis for the assessment — the gap between his zero return and his $60,502.47 in wages — and had sent him four prior decisions on the same protester arguments, including the Holt decision (No. 01-18). His claim of confusion was contradicted by the record.

Result: protest DENIED for failure to overcome the presumption that the assessment was correct.

What this means for you

Wages are taxable income — "zero return" theories do not work

Reporting zero income on real wages does not avoid tax. New Mexico income tax starts from federal adjusted gross income, which includes compensation for services (IRC § 62). Protester theories that wages are not income have been consistently rejected.

Federal Reserve Notes are money, and money you earn is taxable

The argument that you cannot be taxed on Federal Reserve Notes is baseless — Congress specifically authorizes states to tax them. The exclusion for "income from federal obligations" applies to interest on federal bonds and the like, not to your paycheck.

You carry the burden — the state does not have to prove you are a taxpayer

An assessment is presumed correct. You cannot win by demanding the Department "prove" you are a resident or a taxpayer; you must come forward with actual evidence and legal authority showing the assessment is wrong.

Homemade "judgments" and UCC "discharge" filings are not defenses

Filing a private administrative judgment against an official, or purporting to "discharge" a tax under the Uniform Commercial Code, has no legal effect. A tax assessment is not a negotiable instrument, and the Tax Administration Act — protest without paying, or pay and claim a refund — is the only path.

Common questions

Q: He reported zero income — how did the Department know he had wages?
A: His employer's withholding statements showed $60,502.47 in wages. The Department assessed based on the gap between that and the zero income he reported.

Q: Isn't it the state's job to prove he's a resident and a taxpayer?
A: No. An assessment is presumed correct, so the taxpayer must present evidence to show it is wrong. He cannot shift that burden by demanding the Department prove his status, and a person with an unpaid assessment is a "taxpayer" by statute.

Q: Can New Mexico really tax "Federal Reserve Notes"?
A: Yes. Federal law (31 U.S.C. § 5154) expressly permits states to tax Federal Reserve Notes. And wages are income from services, not exempt income from federal obligations.

Q: What about his "private judgment" and his offer to "discharge" the tax?
A: Both were rejected. No law authorizes private proceedings and judgments against officials, and a tax assessment is not a negotiable instrument subject to the UCC. Tax liability is governed by the Tax Administration Act.

Citations and references

Statutes and regulations:

• NMSA 1978, § 7-1-17(C) — a Department assessment is presumed correct; the taxpayer must rebut it
• NMSA 1978, § 7-2-11 — residents taxed on all compensation; nonresidents on compensation for services within New Mexico
• NMSA 1978, § 7-2-2(N)(4) — net income excludes income from obligations of the United States
• NMSA 1978, § 7-2-3 — income tax imposed on net income
• NMSA 1978, § 7-1-3(W) — definition of "taxpayer," including any person to whom an unabated, unpaid assessment has been made
• NMSA 1978, § 7-1-23 — a taxpayer must elect either to protest without paying or to pay and claim a refund
• Regulation 3.1.7.9 NMAC — payment during a protest is allowed only to stop the running of interest
• 31 U.S.C. § 5154 — states may tax Federal reserve notes as money
• Internal Revenue Code § 62 — adjusted gross income includes compensation for services and wages

Cases cited:

• Tipperary Corp. v. New Mexico Bureau of Revenue, 93 N.M. 22, 595 P.2d 1212 (Ct. App. 1979)
• Archuleta v. O'Cheskey, 84 N.M. 428, 504 P.2d 638 (Ct. App. 1972)
• Floyd & Berry Davis Co. v. Bureau of Revenue, 88 N.M. 576, 544 P.2d 291 (Ct. App. 1975)
• Hannahs v. Anderson, 1998-NMCA-152, 126 N.M. 1, 966 P.2d 168
• Smith v. Davis, 323 U.S. 111, 65 S. Ct. 157 (1944)
• Hibernia Savings & Loan Society v. San Francisco, 200 U.S. 310, 26 S. Ct. 265 (1906)

Related decision: In re Protest of James A. and Terri L. Holt, D&O No. 01-18 (a companion tax-protester decision the Department provided to Mr. Youngman; later affirmed by the New Mexico Supreme Court as Holt v. New Mexico Taxation & Revenue Department, 2002-NMSC-034).

Source

• Listing: New Mexico Decisions & Orders
• Decision post: Patrick J. Youngman
• Decision PDF: D&O 01-26

Original ruling text

BEFORE THE HEARING OFFICER
OF THE TAXATION AND REVENUE DEPARTMENT
OF THE STATE OF NEW MEXICO

IN THE MATTER OF THE PROTEST OF
PATRICK J. YOUNGMAN No. 01-26
ASSESSMENT NO. 557686

DECISION AND ORDER

A formal hearing on the above-referenced protest was held October 17, 2001, before

Margaret B. Alcock, Hearing Officer. Patrick J. Youngman (“Mr. Youngman”) represented himself.

The Taxation and Revenue Department ("Department") was represented by Monica M. Ontiveros,

Special Assistant Attorney General. Based on the evidence and arguments presented,

IT IS DECIDED AND ORDERED AS FOLLOWS:

FINDINGS OF FACT

1. On October 20, 2000, the Department issued Assessment No. 557686 to Patrick J.

Youngman, assessing $1,439.00 of personal income tax, $143.90 of penalty and $125.91 of interest

for tax year 1999.

2. The document sent to Mr. Youngman was titled “NOTICE OF ASSESSMENT OF

TAXES” and stated that it was “Issued in the Name of the Secretary, John J. Chavez”. The second

page of the document read: “Pursuant to Section 7-1-17 NMSA 1978, demand is made for payment

of taxes as reflected on the form....” Enclosed with the assessment was a summary of taxpayer

remedies.

3. The assessment resulted from the Department’s review of Mr. Youngman’s 1999

New Mexico personal income tax return and its determination that additional tax was due.

4. Mr. Youngman filed a written a request for extension of time to file a protest to the

Department’s assessment, which was granted.

5. On January 19, 2001, Mr. Youngman filed a written protest to the Department’s

assessment and requested “affirmative relief in the form of a refund of the Federal Reserve Notes

erroneously withheld from my paycheck and paid into the Treasury of the STATE OF NEW

MEXICO....”

6. On August 16, 2001, the Department’s counsel filed a Request for Hearing on Mr.

Youngman’s protest. The request explained that Assessment 557686 was issued to Mr. Youngman

based on the discrepancy between the $60,502.47 of compensation shown on his 1999 withholding

tax statements and the zero income reported on his personal income tax return.

7. On August 23, 2001, a notice of hearing was mailed to Mr. Youngman scheduling a

hearing on his protest for October 17, 2001.

8. On September 12, 2001, Mr. Youngman sent a letter to the Hearing Officer stating

that he was “declining to attend your meeting on the given day (October 17th, 2001)....” Mr.

Youngman stated he would be willing to meet with the Hearing Officer at a later date and set out a

list of 10 issues he would expect the Hearing Officer to address at that meeting.

9. Enclosed with Mr. Youngman’s September 12, 2001 letter were copies of

correspondence between Mr. Youngman and Monica M. Ontiveros, the Department’s attorney. Also

enclosed was a “Verification of Administrative Judgment” signed by Mr. Youngman and an

“Administrative Judgment” signed by “Thomas-Lee - Administrative Hearing Officer”. The seal

placed on the document identifies Thomas-Lee as a “Judge” and “Private Administrative Hearing

Officer” of the United States of America. The Administrative Judgment had been issued against

former Cabinet Secretary John Chavez and filed on the county records of Bernalillo County.

10. On September 14, 2001, the Hearing Officer sent Mr. Youngman a letter explaining

that the “meeting” scheduled for October 17, 2001 was actually a formal administrative hearing and

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that if he failed to appear at the hearing, a decision would be entered in favor of the Department.

The Hearing Officer advised Mr. Youngman that pursuant to Section 7-1-17 NMSA 1978, he had the

burden of proving the Department’s assessment was incorrect and further stated: “Although you

may raise any relevant issues at the October 17, 2001 hearing, it will be your responsibility to

establish the factual and legal basis for your protest—the Department has no obligation to present

evidence unless it chooses to do so.”

11. On September 24, 2001, Mr. Youngman again wrote to the Hearing Officer, stating

that he was willing to discharge the amount of the assessment “until the issues are resolved” and that

his offer “should negate the need for the meeting proposed on October 17th, 2001.” Mr. Youngman

further conditioned his offer on receiving “a private face to face meeting” with the Hearing Officer.

12. On October 5, 2001, the Hearing Officer wrote to Mr. Youngman, informing him that

the administrative hearing on his protest remained scheduled for October 17, 2001.

13. On October 9, 2001, Mr. Youngman sent a “Notice of Fault” to the Hearing Officer

stating: “you have failed in your burden” to provide discovery and further warning that “it may

become necessary to inform the U.S. Attorney General or the FBI of your activities for their own

investigation/prosecution should it become necessary.”

14. The Hearing Officer did not respond to Mr. Youngman’s Notice of Fault.

15. On October 17, 2001, the Hearing Officer convened the administrative hearing on

Mr. Youngman’s protest.

16. Mr. Youngman (who insisted on being addressed as “Patrick”) appeared on his own

behalf. The Department was represented by its attorney, Monica M. Ontiveros.

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17. When given the opportunity to present his case, Mr. Youngman stated that he did not

intend to give any testimony, but had come to the hearing to have the Department respond to his

questions.

18. The Hearing Officer told Mr. Youngman that neither she nor the Department’s

attorney were there to answer his questions. She again explained that it was his burden to overcome

the presumption of correctness that attached to the Department’s assessment and that this was his

opportunity to present his reasons for believing the assessment was incorrect.

19. Mr. Youngman eventually raised a number of legal issues concerning his tax liability,

but provided no factual testimony or other evidence to support his arguments.

20. At the close of Mr. Youngman’s case, the Department’s attorney chose not to put on

any evidence, asserting that Mr. Youngman had failed to overcome the presumption of correctness of

the Department’s assessment.

DISCUSSION

At issue is whether Mr. Youngman is liable for the personal income tax, penalty and interest

assessed against him for tax year 1999. At the October 17, 2001 hearing, Mr. Youngman raised the

following arguments in support of his protest: (1) the Department failed to provide him with

evidence that he is either a resident of New Mexico or a taxpayer; (2) both federal law and Section 7-

2-2(N)(4) NMSA 1978 prohibit the Department from taxing the federal reserve notes he received in

compensation for personal services; (3) the Department “dishonored” the private administrative

proceeding he initiated against Secretary John Chavez; (4) the Department “dishonored” his offer to

discharge the amount of tax assessed by the Department; and (5) the Department failed to define the

term “income”, making it impossible for him to respond to the Department’s assessment of personal

income tax.

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(1) Evidence of Residency or Status as a “Taxpayer”. Mr. Youngman argues that he

does not owe the tax assessed because the Department failed to provide substantial evidence to show

that he is either a resident of New Mexico or a taxpayer. Mr. Youngman’s argument is based on a

misunderstanding of the law. Section 7-1-17(C) NMSA 1978 provides that any assessment of tax by

the Department is presumed to be correct, and it is the burden of the taxpayer protesting an

assessment to overcome this presumption. Tipperary Corp. v. New Mexico Bureau of Revenue, 93

N.M. 22, 24, 595 P.2d 1212, 1214 (Ct. App. 1979); Archuleta v. O'Cheskey, 84 N.M. 428, 431, 504

P.2d 638, 641 (Ct. App. 1972). One way for a taxpayer to meet this burden is to present evidence to

show that the decision of the Department is not supported by substantial evidence. Floyd & Berry

Davis Co. v. Bureau of Revenue, 88 N.M. 576, 577-578, 544 P.2d 291, 292-293 (Ct. App. 1975).

This does not mean, as Mr. Youngman appears to believe, that a taxpayer can overcome the

presumption of correctness merely by stating that there is no substantial evidence to support the

assessment. The taxpayer must present some facts or legal authority to establish the basis for his

position. This was made clear in Hannahs v. Anderson, 1998-NMCA-152 ¶31, 126 N.M. 1, 8, 966

P.2d 168, 175 where the court specifically rejected the taxpayer’s attempt to shift the burden of

presenting evidence to the state:

Taxpayers presented no evidence that their appraisal method was generally
acceptable. Taxpayers attempt to shift this burden by arguing that the
Assessor did not present evidence that Taxpayers' technique was invalid.
However, it is not Assessor's responsibility to establish the invalidity of
Taxpayers' appraisal technique. If Taxpayers want the Board, or this Court,
to accord substantial weight to their valuation method, it is their
responsibility to present some testimony or evidence which sets forth that
method as a generally accepted appraisal technique. (Emphasis added.)

In this case, it was not the Department’s responsibility to establish that Mr. Youngman was a New

Mexico resident during tax year 1999. Rather, it was Mr. Youngman’s responsibility to present

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evidence to show that he was not. This he failed to do. The record shows that Mr. Youngman has a

New Mexico address; that he acknowledges being an “inhabitant” of New Mexico (see, “Verification

of Administrative Judgment” sent to the Hearing Officer on September 12, 2001); that New Mexico

personal income tax was withheld by his employer during 1999; and that he filed a New Mexico

personal income tax return with a New Mexico address for tax year 1999. All of these facts support

the conclusion that Mr. Youngman is a resident of New Mexico and was a resident during 1999. Mr.

Youngman failed to provide any testimony or other evidence that would support a different

conclusion.

It should be noted that the state’s right to tax Mr. Youngman’s income does not depend

solely on his status as a New Mexico resident. Section 7-2-11 NMSA 1978 provides that residents of

New Mexico are subject to New Mexico income tax on all compensation earned during the tax year

and that nonresident taxpayers are subject to New Mexico income tax on all compensation “for

activities, labor or personal services within this state....” In order to show that the Department’s

assessment of tax is incorrect, Mr. Youngman would have to establish first, that he was not a resident

of New Mexico in 1999 and second, that the income he earned during 1999, and from which his

employer withheld New Mexico income tax, was not earned within the state of New Mexico. Mr.

Youngman failed to present evidence bearing on either of these issues.

With regard to Mr. Youngman’s assertion that there is no evidence he is a “taxpayer”,

Section 7-1-3(W) NMSA 1978 of the Tax Administration Act defines a “taxpayer” as follows:

W. “taxpayer” mean a person liable for payment of any tax, a person responsible for
withholding and payment or for collection and payment of any tax or a person to
whom an assessment has been made, if the assessment remains unabated or the
amount thereof has not been paid.

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Mr. Youngman comes within this definition since he is “a person to whom an assessment has been

made” and the assessment remains both unabated and unpaid. Whether Mr. Youngman is also a

taxpayer because he is “a person liable for payment of any tax” is something that will be determined

in this Decision and Order.

(2) Taxation of Federal Reserve Notes. Mr. Youngman maintains that both federal and

state law prohibit the Department from taxing the federal reserve notes he received in compensation

for personal services. The federal law issue is disposed of by 31 U.S.C Section 5154, which gives

states express permission to tax federal reserve notes:

§ 5154. State Taxation
A State or a territory or possession of the United States may tax United
States coins and currency (including Federal reserve notes and circulating
notes of Federal reserve banks and national banks) as money on hand or on
deposit in the same way and at the same rate that the State, territory, or
possession taxes other forms of money.

In Smith v. Davis, 323 U.S. 111, 65 S.Ct. 157, 159 n.4 (1944), the United States Supreme Court

noted that while state taxation of legal tender notes was once prohibited, this was changed by

Congress's 1894 enactment of what is now 31 U.S.C Section 5154. See also, Hibernia Savings &

Loan Society v. San Francisco, 200 U.S. 310, 26 S.Ct. 265, 267 (1906).

Mr. Youngman’s state law argument is based on Section 7-2-2(N)(4) NMSA 1978, which

excludes “income from obligations of the United States of America” from the definition of “net

income”. While federal reserve notes themselves may be a form of federal obligation, they do not

represent income “from” federal obligations. Any compensation Mr. Youngman received from his

employer was income from the performance of personal services, which is clearly subject to tax. In

the absence of any evidence that Mr. Youngman had income from federal obligations during 1999,

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his argument concerning Section 7-2-2(N)(4) NMSA 1978 is simply irrelevant to the current

proceeding.

(3) “Dishonor” of Private Administrative Proceeding. Mr. Youngman believes the

Department forfeited its right to enforce its assessment against him when the Department

“dishonored” the private administrative proceeding he initiated against Secretary John Chavez in

January 2001.1 This dishonor apparently resulted from Mr. Chavez’s failure to respond to or

otherwise participate in Mr. Youngman’s private proceeding. When asked what law authorized such

a proceeding, Mr. Youngman stated that all citizens have the right to file a petition for redress of

grievances against public officials. He did not provide any legal authority for his position, other than

a reference to “Title 5” and “administrative procedures”. If Mr. Youngman intended to argue that

the federal Administrative Procedures Act, 5 U.S.C. Section 500, et seq., supports his position on

this issue, he is mistaken. There is nothing in the Administrative Procedures Act—or any other

federal or state law—that gives citizens the right to institute private legal proceedings and engage

private hearing officers to file judgments against public officials on the county records. Nor does any

law require public officials to respond to such proceedings.

(4) “Dishonor” of Mr. Youngman’s Offer to Pay Assessment. Mr. Youngman also

believes the Department “dishonored” his offer to discharge the amount of tax assessed against him.

In making this argument, Mr. Youngman relies on Section 55-3-603 NMSA 1978 of the Uniform

Commercial Code (see, Notice of Fault sent to the Hearing Officer on October 9, 2001).

This statute applies to tenders of payment of negotiable instruments. An assessment of tax is not a

negotiable instrument and is not subject to the provisions of the Uniform Commercial Code. The

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John Chavez resigned as Cabinet Secretary at the end of 2000. T. Glenn Ellington was Secretary of the
Department at the time Mr. Youngman initiated his administrative proceeding and filed his “Administrative
Judgment” against Mr. Chavez.

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payment of tax assessments is governed by the Tax Administration Act, Section 7-1-1, et seq.,

NMSA 1978. Section 7-1-23 NMSA 1978 states that a taxpayer must elect to dispute his liability for

payment of taxes “either by protesting the assessment...without payment or by claiming a

refund...after making payment.” The pursuit of one of these two remedies constitutes an

unconditional waiver of the right to pursue the other. The only provision for payment of tax after a

protest is filed—but before the protest is resolved—is found in Department Regulation 3.1.7.9

NMAC, which provides for payment solely to stop the running of additional interest.

In this case, Mr. Youngman’s offer to pay was not made in order to stop the running of

interest, nor was it intended to resolve the merits of his protest. Mr. Youngman’s offer was made in

an attempt to have the date of the formal hearing on his protest postponed. His September 19, 2001

letter stated that he would discharge the amount of the assessment “until the issues are resolved” and

that “[t]his should negate the need for the meeting proposed on October 17th, 2001....” Mr.

Youngman further conditioned his offer on receiving “a private face to face meeting” with the

Hearing Officer. Taxpayers may not impose their own system of pleading or rules of procedure on the

state. The fact that the Hearing Officer declined to accept Mr. Youngman’s conditional offer of

payment has no effect on Mr. Youngman’s liability for payment of taxes due to the state.

(5) Definition of “Income”. Mr. Youngman asserts that the Department failed to

provide him with a definition of the term “income”, making it impossible for him to prepare for the

hearing on his protest. Besides improperly shifting the burden of proof to the Department, Mr.

Youngman’s protestations of ignorance are contradicted by the record of this proceeding. During the

October 17, 2001 hearing, Mr. Youngman declared that he was no more able to understand the

meaning of income as used by the Department than he was to engage in a discussion on astrophysics.

At the same time, he exhibited extensive knowledge of the statutory definition of “net income”,

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which is the starting point for calculating New Mexico personal income tax. See, Sections 7-2-3

NMSA 1978 and 7-2-2(N) NMSA 1978. Not only did Mr. Youngman read the text of Section 7-2-

2(N) NMSA 1978 into the record, he argued that the exclusion in Subsection (N)(4) prohibited the

Department from taxing his 1999 income (discussed under Point (2), above). Mr. Youngman’s own

arguments rebut his claim that he was unable to find a definition of “income” as it relates to New

Mexico’s personal income tax.

Mr. Youngman’s allegations that the Department never explained the meaning of income or

provided him with information concerning the basis for its assessment are also contradicted by the

record. On August 16, 2001, Monica M. Ontiveros, the Department’s attorney, filed a Request for

Hearing in this matter. Under the section heading, “Issues to be determined”, Ms. Ontiveros clearly

stated that the basis for the Department’s assessment was the discrepancy between the zero income

Mr. Youngman reported on his 1999 New Mexico income tax return and the $60,502.47 of income

shown on his withholding statements. Ms. Ontiveros explained that the starting point for calculating

New Mexico personal income tax is federal adjusted gross income as defined in Section 62 of the

Internal Revenue Code, and that the definition in Section 62 “includes compensation for services or

wages.” On August 22, 2001, Ms. Ontiveros sent a letter to Mr. Youngman, which Mr. Youngman

forwarded to the Hearing Officer on September 12, 2001. The letter again set out the basis for the

Department’s assessment of personal income tax against Mr. Youngman. Ms. Ontiveros also

enclosed copies of four Decisions and Orders previously issued by the Department’s hearing officers

which addressed many of the same issues raised by Mr. Youngman: No. 01-18 (James A. and Terri

L. Holt); No. 99-23 (Nestor and Emmeline Padilla); No. 99-20 (Joseph and Toni Renee Salinas); and

No. 97-27 (Anthony Cordova). These decisions, which are nonconfidential public records of the

Department and can be found on the Department’s web site, contain a thorough discussion of New

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Mexico’s personal income tax laws, as well as an explanation of how taxable income is determined.

There is simply no merit to Mr. Youngman’s claim that he did not have the information necessary to

determine whether his income was subject to New Mexico personal income tax.

CONCLUSIONS OF LAW

1. Mr. Youngman filed a timely, written protest to Assessment No. 557686, and

jurisdiction lies over the parties and the subject matter of this protest.

2. Mr. Youngman failed to meet his burden of presenting evidence and legal authority to

establish that the Department's assessment of personal income tax against him was incorrect.

For the foregoing reasons, the Taxpayer's protest IS DENIED.

DATED October 24, 2001.

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