UNITED STATES DEPARTMENT OF LABOR

Phillip A. Zampino and his Rebuttal and Appeal of:

ECAB DOCKET NUMBER: 2002-1145

Employees` Compensation Appeals Board

1. 02-1145: PHILLIP A. ZAMPINO and U.S. POSTAL SERVI...

DEPARTMENT OF LABOR. Employees' Compensation Appeals Board. In the Matter of PHILLIP A. ZAMPINO and U.S. POSTAL SERVICE, POST OFFICE, Canton, OH. Docket No. 02-1145; Submitted on the Record; Issued January 28, 2004. DECISION and ORDER ... owner of the shop was listed as appellant's wife, Diane Zampino. In a CA-1032 form signed on ...www.dol.gov/ecab/cases/2004/Jan/02-1145.htm -

I Want You To Be My Judge and Jury

I want you to be my Judge and Jury

regarding a case I was involved in

with the U.S. Government.

After you read my attached Appeal concerning my

USDOL/ECAB/BHR/OWCP/POST OFFICE case,

I want you to read the U.S. Governments

twisted reasoning in this case.

ECAB DOCKET NUMBER: 2002-1145

Employees` Compensation Appeals Board

02-1145: PHILLIP A. ZAMPINO and U.S. POSTAL SERVI...

I would like to hear your opinions and conclusions.

www.PAZPublishing.sbcglobal.com

Keep in mind this type of case is never heard

by a Federal Judge or Jury of peers.

A government agency who may directly or indirectly

work in conjunction with another government agency is how decisions are made.

Government Agency Number 1

Here`s how the system works. The employing government agency usually passes on to Worker`s Compensation twisted and confusing information if they decide to attack an individual, for whatever reason or made up theory they choose. OWCP will then initiate an investigation. OWCP is called the OFFICE.

Government Agency Number 2

The decisions are rendered by this government agency (called the OFFICE).

Government Agency Number 3

If the Claimant appeals the Offices decision the case file and decisions are passed on to another government agency (called the BOARD OF HEARING AND REVIEW).

Government Agency Number 4

If the Claimant appeals the decision made by the Board of Hearing and Review the case file and decisions are passed on to another government agency (called ECAB (Employees` Compensation Appeal Board).

Again, Please keep in mind this type of case is NEVER heard

by a Federal Judge or Jury of peers.

Decisions are made by government agency after government agency

who may directly or indirectly work in conjunction with

the other government agencies that render the decisions.

I have been involved in local government.

My experience and belief is that when one government

agency feeds into another government agency,

which requires an appealed decision,

they usually always support each other`s decisions.

Quite honestly I believe they are expected

to support each other`s decisions.

At the very least,

I believe this method of rendering decisions is not due process.

Nor do I believe it is a fair way to render decisions.

In my opinion, this type of process means

that we have a government inside the government.

Most people, like you and me do not understand the government options whether it is because you are forced out on disability retirement due to an injury or any other issue. Believe me when I say, this entire process could have been avoided if someone from one of the government agencies involved would have explained to me my options. Thousands of tax dollars could have been saved.

How do we hold an individual accountable for being grossly negligent or over zealous in their job when employed by the government? We can`t! They are exempt as well as the government from being sued. Another government benefited decision because another branch of our government passed that law.

I truly believe one individual in the government, was given orders to do whatever it took to get me off Worker`s Compensation. Because my medical case was so very strong and the government could not even change the minds of their own doctors regarding the severeness of my back injury, and my ability to continue doing my government job, I believe the government chose to create a bogus theory based upon me not reporting income. You will see below that I gave all the information required and more. You will see, I asked for advice and I asked many questions, but never once received a response to my really important questions that could have eliminated this case. Therefore, the grossly negligent employees involved in my case are not held accountable.

It took the Post Office nearly 10 years to come up with a theory on how to remove me from worker`s compensation. I believe their objective was to make sure I pled guilty to making a false statement so that, under a new law, which was passed during our negotiations, and, unbeknown to my attorney and me that would guarantee them that I could never receive worker`s compensation again.

Ask yourself, Could I (you) endure a 10 year investigation that would rip my (your) family apart? Wouldn`t you, no matter what, try to do something, anything to end it, in order to especially protect your children? That`s what I did!

I would like to hear your opinions and conclusions.

www.PAZPublishing.sbcglobal.com

Now sit back and read this unbelievable story.

It should be made into a movie. Yes, a comedy!

UNITED STATES DEPARTMENT OF LABOR

Employee`s Compensation Appeal Board

200 Constitution Ave. N.W., Room N-2609

Washington, D.C. 20210

RE: THE MATTER OF: OWCP CLAIM NO. 090-130317

PHILLIP A. ZAMPINO, Claimant-Applicant

ECAB DOCKET NUMBER: 2002-1145

CLAIMANT`S APPLICATION FOR REVIEW (65 pages) (86 PAGES TOTAL)

_______________________________

Phillip A. Zampino, Claimant-Applicant

Mailing/Residence Address: 2415 Bevington St. NW Canton, Ohio 44709

Home and Fax Phone Numbers: 330-493-6661

Employed by: U.S. POSTAL SERVICE, Akron/Canton, Ohio

Nature of injury: Multifaceted chronic back condition resulting later into

Post Traumatic Fibromyalgia

Date of injury: 4-26-72

Date of injury recurrence: 4-26-76

Place of injury: Canton, Ohio

Date of departure/retirement from Postal Service: 3-4-77

CSA Number: 1-962 574

Claimant, Phillip A. Zampino (hereinafter Claimant)

respectfully appeals the following decisions:

The Office`s March 23, 1992 determinations of

Overpayment of $221,528.33 from 1/15/77 through 5/7/90

II.

The BHR June 21, 2001 determination

that the overpayment March 23, 1992 in the amount

of $221.528.33 be reduced to $143,570.31

covering the following time periods:

Forfeitures dated July 2, 1980, April 4, 1983,

June 8, 1985, August 23, 1985, October 15, 1985, January 2, 1986,

October 20, 1986, October 7, 1987, October 20, 1988,

September 15, 1989, May 11, 1990

III.

The Office`s January 30, 2002 determination

denying the Claimant any relief relative to the

Reconsideration filed by the Claimant, with the Office on November 13, 2001

in regards to the June 21, 2001 decision of BHR

Claimant submits the attached brief with Claimant`s case file, which is in the hands of OWCP, and in the record, in support of this application for review.

This application has been prepared and is filed by the undersigned.

PHILLIP A. ZAMPINO, CLAIMANT

2415 Bevington St. NW

Canton, Ohio 44709-2221

VOICE or FAX: (330) 493-6661

*** In a separate decision by OWCP, the ISSUE Termination of the Claimant`s Benefits is in a separate brief contained herein and is hereby requested to be reviewed by ECAB with the above issues.

ARGUMENTS

INTRODUCTION

The Claimant sincerely apologizes in advance for the length of this brief. The amount of information submitted is necessary due to the MASSIVE amount of information, evidence and facts in this case covering a 30-year period. Because a great deal of information has been mis-stated, overlooked, duplicated or incorrectly reported by the USPS to the Office, which has filtered down through the decisions of the Office and BHR, it is critical that the Claimant mention and quote to the ECAB facts and evidence in the record which present a more accurate picture of this case.

Also, the correspondence between the Claimant (particularly his former attorney) and the Office (particularly the Branch of Hearings and Review) is extremely important to this case not only with respect to an alleged overpayment, but with regard to the other matters to have been decided in error. Rather than reiterate many arguments raised and submitted into the record, the Claimant respectfully incorporates herein by this reference all such correspondence, attachments, exhibits ESPECIALLY:

Exhibit 1 submitted to BHR at the January 31, 2001 hearing in Cleveland, Ohio
Exhibit 2 which was submitted to BHR on February 12, 2001 OWCP-20 form with attachments
The Claimant`s filing of a Reconsideration with the Office on October 5, 2001 but recorded by the Office as November 13, 2001)

And, all pleadings (all of which should be in the record since it has all been submitted to the Office and/or BHR) and strongly urges the ECAB to read all such correspondence, especially any reference marked in BOLD PRINT, highlighted, in red print or words underlined.

In other words, the facts and evidence currently in the record as described herein and supported by such correspondence and the relevant arguments seriously depend on a thorough reading of the record.

The Claimant requests the ECAB to consider

the following arguments in this case:

1. The USPS August 6, 1991 report

should be stricken from the record.

The ECAB should seriously consider the credibility of the USPS report, which has been the primary instrument of all the so-called evidence that has determined the Claimant`s overpayment.

2. A Comprehensive Agreement had been

reached by the Claimant and his Attorney

with the USPS and the U.S. Attorney`s Office.

The Office and BHR ignored the comprehensive agreement, which included that the amount of debt owed would be between $5,000 and $10,000 if the Claimant`s appeal process failed.

3. The June 21, 2001 decision by BHR ignores

Exculpatory facts and evidence concerning

the overpayment periods indicated by the

hearing representative.

Numerous affidavits, documents, statements, explanations, special circumstances, arguments and letters have been ignored by the Office and BHR, which are in the Claimant`s case file.

4. The January 30, 2002 determination by the

Office ignores exculpatory facts and an abundance

of NEW Evidence concerning the 1985 overpayment

period and abused their discretion by refusing

to waive the Claimant`s overpayment by not

calculating Equity and Good Conscience properly.

Additional receipts and documents were submitted to the Office pertaining to the issues mentioned above. The Office`s rationale and reasoning for denying the Claimant any Reconsideration on the issues mentioned above has confused this case even further. Most importantly, ECAB must notice that the Office mistakenly calculated the Claimant`s gross income as net income. Consequently, the Claimant`s eligibility for Equity and Good Conscience was denied because the Office calculated his gross income as net income.

(1)

The August 6, 1991 report by the USPIS should be

discarded and stricken from the record along with

the June 21, 2001, decision of

Hearing Representative Rachel Leiton

IMPORTANT: The ECAB should seriously consider and challenge the credibility of the USPS report of August 6, 1991, which is the primary instrument of all the so-called evidence that has determined the Claimant`s overpayment.

IMPORTANT: Because the Office used and has referred ONLY to the August 6, 1991 documentation in supporting their position regarding the overpayment during the Claimant`s appeals with the Office and BHR, those decisions of the Office and BHR, too, should be stricken from the record.

IMPORTANT: The Office finalized this case on 3/23/92, which is less than 30 days from the preliminary decision of the Office of 2/28/92. Procedurally this case has been mishandled from day one and should be dismissed.

IMPORTANT: The Office finalized this case on 3/23/92. The OWCP is barred by the six-year period of limitations of 28 U.S.C. Section 2415 and 31 U.S.C. 3731 (b). from recovering an overpayment of compensation made more than six years before the Office determined there was an overpayment. Therefore, all periods prior to 3/23/86 should be void and not relevant to this case.

IMPORTANT: The 2/28/92 decision of the Office, in this case, is now past the 10-year statute of limitations for collecting an overpayment debt. FECA Manual Debt Management Part 6 (8h) states:

h. A statutory limitation of 10 years exists for the initiation of any offset effort.Specifically, the OWCP may not initiate salary offset to collect a debt more than 10 years after the right to collect the debt first accrued,...

It is now beyond 10 years and the Office has not legally been permitted to initiate any collection due to the Claimant`s entitlement to receive Due Process. Most importantly, OWCP`s four and one-half years of lapsed time (1996-2000) in doing nothing to resolve this case is unreasonable and negligent. Therefore, this case should be dismissed.

In this case, Federal Magistrate Judge David S. Perelman, in his ruling and order dated November 8, 1991, determined that the USPS was on a witch hunt and fishing expedition, a mission to terminate the Claimant`s benefits, and they should not be supported in doing so by this federal court.

In this case, USDOL/OWCP sometimes Acting Director, Senior Claims Examiner David T. Woods, in a letter to the USPS dated September 20, 1989, stated: you have no intention of reemploying Mr. Zampino and that you are merely seeking some way, any way to terminate Mr. Zampino`s compensation benefits.

All the so-called evidence by Inspector Douillette was finalized on August 6, 1991. Judge Perelman indicated in his November 8, 1991 ruling: Other than conclusory allegations by Inspector Douillette that Mr. Zampino is cheating the government, there is not a shred of evidence before this Court...

In a ten (10)-page affidavit by the Claimant`s former wife, Diane Zampino, dated December 7, 1992, she states many specific inaccuracies regarding Mr. Douillette`s written report regarding an interview with her on March 20, 1991. The rebutted (12/7/92) affidavit is important because the Office and BHR used the mis-stated testimony of Mr. Douillette`s March 20, 1991 interview, which was included in Mr. Douillette`s August 6, 1991 final report to OWCP, as a means of substantiating the Office`s position. However, no one from OWCP or BHR gave any probative value to the 12/7/92 affidavit.

In Scott Grewell`s (store manager at that time and current owner of the business) affidavit, dated December 1, 1992 he states the following on page 2 of his affidavit: During my interview with Mr. Douillette and Mr. Flowers on February 21, 1991 I gave them an example as to why Mr. Zampino`s picture was on envelopes etc. regarding advertising. I stated, Would you go to an automotive repair shop if you knew a woman owned it? We have a similar male image type business because of mostly drummers being male and prejudice towards females. I have read over Mr. Douillette`s report of my interview with him, and have noticed that statement was omitted from his report. Additionally in his report, several inaccurate statements and/or comments were made which are out of context compared to what I said or meant.

On page five (5) of an affidavit prepared by Donald Sauerbier, CPA, the family Certified Public Accountant, dated December 18, 1992, he states: In March of 1991 Mr. Douillette attempted to contact me at home on a Friday evening. I was not in at the time. He left a message on my home answering machine indicating he called regarding Phillip Zampino and that he would contact me the next week to arrange a time when we could meet. I never heard from him or received any request for information from him after he left the message that Friday evening. The Zampino`s gave me authority to provide Mr. Douillette with any information that he may require at any time.

Also, in the affidavit, Mr. Sauerbier provides in specific detail the FAMILY focus about the business, how Ohio Tax agencies and the IRS views a business owned by either the husband or wife, the unimportance of specific documents signed by a husband or wife and how the State of Ohio and IRS view it. Mr. Sauerbier explains how errors occurred because of the previous bookkeeper, prior to his passing away in 1988, and the corrections he made related to Social Security postings, vendor`s licenses etc., and why. Mr. Sauerbier specifically indicates that IRS did NOT even think they should issue a new Federal Tax I.D. number to Diane Zampino because of the family business.

There is an abundance of facts and evidence in Mr. Sauerbier`s affidavit, which explains the circumstances and confusion in this case. Most importantly he points out that the Claimant did NOT receive any income or financial benefit from the business. (EMPHASIS ON SAUERBIER`S 2 AFFIDAVITS)

There would have been no one better for Mr. Douillette to contact than the family accountant to find out the truth relative to the Claimant`s financial involvement in the family business. It is obvious that Mr. Douillette did not contact Mr. Sauerbier because Mr. Sauerbier would have provided evidence and facts to Mr. Douillette that would have had to be included in his August 6, 1991 report to OWCP.

One must conclude that Mr. Douillette realized that any information provided by Mr. Sauerbier would have, in all probability, very much weakened Mr. Douillette`s biased and tainted report and his ability to create an overpayment, LWEC, and/or terminate the Claimant`s benefits. This further proves that Mr. Douillette was not attempting to find the truth regarding the Claimant, but instead Douillette was attempting to incriminate the Claimant any way possible.

Contained in a Certified Copy of Transcripts, the Claimant spoke with Supervisor Gregory George on 3/23/92, from the Ohio Department of Taxation. Following is information pertaining to an alleged conversation between Inspector Douillette and Supervisor Gregory George. In Mr. Douillette`s August 6, 1991 report he states: I contacted the Ohio Department of Taxation on 2/26/91 and spoke with supervisor Gregory George. Mr. George told the Claimant on 3/23/92 that he would have remembered a name like Douillette and that he didn`t remember speaking with Mr. Douillette. He also states: I don’t know who this person was.... you say he contacted me. In Mr. Douillette`s August 6, 1991 report he made some absurd statements regarding his alleged conversation with Mr. George. The Claimant strongly urges the ECAB to read the certified copy of the 3/23/92 transcripts.

Mr. George clearly states in the certified copy of transcripts on his 3/23/92 conversation with the Claimant, that: if he called me for any reason, if he asked me something about your business or anybody`s business, we don`t give out information. That`s confidential. If he asked me what the license name was. I wouldn`t tell him that.

Most importantly, Mr. George substantiated in his conversation with the Claimant on 3/23/92, in the certified copy of the transcripts, the fact that the State of Ohio didn`t care whose name was on the license as it related to payment of Ohio Sales Tax. Mr. George stated, as long as the monthly Sales Tax was paid, that`s all they cared about.

In CPA Sauerbier`s affidavit and Supervisor George`s transcripts is an abundance of evidence and facts about the unimportance of sales tax applications and other tax documents of any business as it relates to a Family Owned Business by either the husband or wife.

Furthermore, Mr. Douillette, in his report, claims he had an alleged conversation with an important official from the Ohio Tax Department, when in fact he did NOT. Mr. Douillette, in his report, additionally makes it sound as if his discovery of tax information is important when in fact it is NOT.

If Mr. Douillette would have sought the truth about this information with CPA Sauerbier he would have learned of it`s unimportance and would have learned that the only important tax document related to this case MAY be the Federal Income Tax Return Schedule C and SE which affects the correct posting of Social Security earnings which in this case reflect only the profits of the business and not the actual earnings of the Claimant or his former wife. Prior to any known investigation by the Claimant and his former wife, the Claimant and his wife advised the former bookkeeper around 1977-78, when the Claimant`s former wife`s father passed away, leaving her a sizeable inheritance, that Diane Zampino would be considered the legal owner due to her investing her inheritance into the business. Unfortunately for the Claimant, he relied solely on the bookkeeper, who unfortunately passed away in 1988, to make all the necessary and proper changes by law, which would be required. In 1979, 1980 and 1985 he, or one of his employees, made an error by listing the Claimant`s social security number on the schedule C of the income tax return. However, the 1985 error was discovered when the new CPA received all the tax returns that the Claimant and his wife had. They no longer had the 1979 and 1980 tax returns.

This error was discovered in 1989 by the new CPA, Mr. Sauerbier, when he discovered Diane Zampino`s name as the owner on the 1985 schedule C and SE and the former bookkeeper mistakenly used the Claimant`s social security number instead of the Claimant`s wife.

When Mr. Sauerbier, CPA, took over the accounting of the Zampino Family he requested previous tax returns. Tax returns from about 1983 to 1988 were supplied to Mr. Sauerbier. He noticed the error in 1985 and submitted the paperwork for correction with social security. This was pointed out when the Claimant filed Reconsideration and substantiated this fact by submitting evidence of the Claimant`s Social Security Report. The Office ignored the Social Security document. Furthermore, this proves that the previous bookkeeper did error at times. The tax returns for 1979-1980 were no longer available to know that there was an error. In the year`s 1977-78-81-82-83-84-(corrected 85)-86-87-88-89-90, the profits of the business were reflected to be Diane Zampino`s and posted to her social security number on the annual tax returns.

The June 21, 2001 decision of Hearing Representative Ms. Rachel Leiton lists the following information to substantiate her position as to why the Office determined an overpayment against the Claimant in this case.

In August of 1991, the Postal Service forwarded to the Office a copy of an Investigative Memorandum with Exhibits, signed by A.E. Douillette. In the Memorandum, Mr. Douillette alleged that Mr. Zampino had failed to report earnings from a private company that he had owned since he had been in receipt of compensation. The Exhibits included the following documents: 1990 tax return showing Phillip and Diane Zampino as owners of Zampino`s Drum Shop; a March 20, 1991 transcript of an interview with Diane Zampino, the claimant`s wife; a June 18, 1991 transcript of an interview with the claimant; Social Security Administration records for the period from 1972 through 1977; evidence that the investigator had reviewed checks from the Shop, 99% of which were signed by the claimant from 1988 through 1989; bank signature cards for the business signed by both Mr. and Mrs. Zampino on February 21, 1990; January 31, 1988 bank statement for the drum shop; copy of an April 18, 1975 vendor`s license to the claimant for sales and teaching; application for vendor`s license signed by the claimant as sole owner on April 18, 1975; August 10, 1990 application for vendor`s license to make sales, wife as sole owner beginning October 1, 1990; February 21, 1991 business questionnaire from BBB Canton, Ohio, claimant listed as owner of Zampino`s Drum Shop, with date of establishment 1980, and date of start of operations 1980; interview with Scott Grewell, store manager, dated February 21, 1991; joint tax returns from 1985 through 1990; advertisements for the Shop, with a picture of the claimant as the owner (1986); and a promotional pamphlet and resume from September 19, 1989, in which the claimant was running to become a member of the school board.

The Claimant`s Rebuttal of the Exhibits (supplied by Mr. Douillette on August 6, 1991 to the Office), Ms. Leiton mentions in her June 21, 2001 decision are as follows:

1990 tax return showing Phillip and Diane Zampino as owners of Zampino`s Drum Shop;

REBUTTAL: This was Douillette`s Exhibit 55. The tax return indicates clearly that it was a joint tax return of Phillip and Diane Zampino. The schedule C clearly lists solely Diane Zampino as the owner with her social security number. The Claimant consistently and constantly informed the Office of his activities in the FAMILY business. On 3/24/87, Claims Investigator Kathleen Toy states in a memo to the Claims Examiner: At the present time there is no way to put a monetary value on the family business and what part would reflect the claimant’s `earnings`. Even a review of the tax returns would only show the total `earnings` credited for self employment but would include both the wife and husband with no way to separate who would get what.

A March 20, 1991 transcript of an interview with Diane Zampino, the claimant`s wife;

REBUTTAL: This was Douillette`s Exhibit 25. This document was a Memorandum of an Interview and is NOT a transcript as Ms. Leiton stated in her final decision of June 21, 2001. Mr. Douillette inaccurately REPORTED many issues and circumstances in this report. In a ten (10) page affidavit by the Claimant`s former wife, Diane Zampino, dated December 7, 1992, she states many specific inaccuracies regarding Mr. Douillette`s written report regarding the interview with her on March 20, 1991. The rebutted (12/7/92) affidavit is important because the Office and BHR used the mis-stated testimony of Mr. Douillette`s March 20, 1991 interview, which was included in Mr. Douillette`s August 6, 1991 final report to OWCP, as a means of substantiating the Office`s position.

A June 18, 1991 transcript of an interview with the claimant;

REBUTTAL: This was Douillette`s Exhibit 26. This document was a Memorandum of an Interview and is NOT a transcript as Ms. Leiton stated in her final decision of June 21, 2001. Mr. Douillette inaccurately REPORTED many issues and circumstances in this report and took many things out of context. He wrote the information with negative connotations and left out many facts around the issues that were discussed at the interview.

Social Security Administration records for the period from 1972 through 1977:

REBUTTAL: This was Douillette`s Exhibit 4. This exhibit covered the years 1972 thru 1985 NOT 1972 through 1977 as Ms. Leiton stated in her June 21, 2001 final decision. This proves the following important points: 1) The former bookkeeper made an error in 1979 and 1980 by listing the Claimant`s social security number on the schedule C instead of the Claimant`s wife, 2) The bookkeeper properly listed on the schedule C of the joint tax returns of the Claimant and his wife, the social security number of the Claimant`s wife on the 1977-78-81-82-83-84 and later corrected the 85 tax return plus all the tax returns from 1986 through 1990, the time period of this case.

Evidence that the investigator had reviewed checks from the Shop, 99% of which were signed by the claimant from 1988 through 1989;

REBUTTAL: The Claimant never denied participating in the business. A five (5) page detailed informative report was sent to the Office by the Claimant on January 2, 1986. On page 3 the Claimant states: I`ve personally controlled the direction of the business by setting up store policies, advertising, some accounting work such as recording the sales slips and purchasing, and also payment of wages to employees. The Claimant and/or his wife were the only persons authorized to sign checks. However, in a three (3) page affidavit prepared by Taunya (Moncrief) Dietry, secretarial supervisor of the business, she states on page 1 paragraph 7, second sentence: I (Taunya) was involved in 99% of the check writing, posting, and/or mailing and/or cash process of the business. I never wrote a business check to Phillip Zampino Sr., nor do I ever recall posting any business check that benefited Phillip Zampino Sr. I can unequivocally state, Phillip Zampino never received an income or any financial benefit from the store. As a convenience to me and/or Scott Grewell, Mr. Zampino was asked to sign many checks in advance, so I could calculate paying bills, and take care of mailing the checks to the companies, and Scott could receive COD orders.

Bank signature cards for the business signed by both Mr. and Mrs. Zampino on February 21, 1990;

REBUTTAL: These bank signature cards were volunteered to the Office by the Claimant on February 21, 1990 along with many other volunteered documents and statements about his activities in the business. It should be noted that, on May 22, 1990 is the date Mr. Douillette began to request documents from the Claimant and/or his wife. Therefore, this was not information Mr. Douillette uncovered during his investigation as Ms. Leiton indicates in her June 21, 2001 decision. Mr. Douillette pulled this information from the Claimant`s case file and resubmitted it in such a way as to present it as new information. Additionally, it was not unusual for the Claimant and/or his wife to sign documents relative to personal and business matters because of the simple reason of them being husband and wife. Please refer once again to the two (2) affidavits of Donald Sauerbier, CPA, which clearly explains the views of IRS and other tax departments regarding the husband and/or wife associated with a business.

January 31, 1988 bank statement for the drum shop:

REBUTTAL: This was Douillette`s Exhibit 29. This is simply a bank statement for the business with no other significance.

Copy of an April 18, 1975 vendor`s license to the claimant for sales and teaching; Application for vendor`s license signed by the claimant as sole owner on April 18, 1975; August 10, 1990 application for vendor`s license to make sales, wife as sole owner beginning October 1, 1990;

REBUTTAL: This was Douillette`s Exhibit 30-31-33. The Claimant worked part time for the USPS in 1972-73 as a result of the 1972 injury. The Claimant returned to FULL TIME employment in February 1974 until April of 1976. The Claimant was NOT in receipt of OWCP benefits from February 1974 until later in 1976. This is important because of concurrent employment prior to being put onto disability by the USPS.

This vendor`s license was necessary due to the Claimant and his wife moving to a different home and because taxable sales were necessary to report. From 1968 to 1975 the Claimant operated from his three (3) previous home locations and there were no taxable sales to report or record, only non-taxable sales and service income. The 1975 vendor`s license stayed active until Donald Sauerbier, CPA, suggested that it be updated, even though The Ohio Department of Taxation considered it to be no big deal. In the affidavit of Donald Sauerbier, CPA, he explains that he suggested this change to the Zampino`s in early 1989. He also suggested waiting until the beginning of tax year 1990. He further explains in his affidavit as to why it was filed around August 10, 1990. The Zampino`s always relied on the recommendation of their family CPA. Jim Rowley, deceased 1988, the previous family bookkeeper for the Zampino`s, never suggested changes were necessary probably because it was no big deal to the State of Ohio or IRS.

February 21, 1991 business questionnaire from BBB Canton, Ohio, claimant listed as owner of Zampino`s Drum Shop, with date of establishment 1980, and date of start of operations 1980;

REBUTTAL: This was Douillette`s Exhibit 35. Hearing Representative Ms. Leiton fails to accurately report and notice the following information about this exhibit in her June 21, 2001 decision. 1) The date of the questionnaire is 11/12/87 NOT February 21, 1991 as Ms. Leiton indicates. 2) The Claimant signed the questionnaire prior to its completion. It appears someone at BBB completed the rest of the information. (It`s important to understand that the perception of the community was that the Claimant was the owner due to his history in music education since 1961 and because his name was ZAMPINO). 3) Operations of the family business began in 1970 NOT 1980 as Ms. Leiton indicates. 4) 1980 was the date the business moved to its current location, NOT the date of establishment of the business as Ms. Leiton indicates.

It`s important to point out that one year earlier the Claimant reported to the Office he controlled the direction of the business and the USPS and the Office were satisfied with all activities and income reporting by the Claimant as stated in the 11/20/87 USPIS files submitted in Exhibit 1 to Ms. Leiton on January 31, 2001.

It was not uncommon for people knowing of, speaking to, or dealing with the Claimant to assume that he was the owner of the business. In this case, the Claimant was the founder of the business in 1968 and began teaching in 1961. His reputation was established seventeen years prior to his wife receiving her inheritance and he and his wife then agreeing in 1978, that she would be considered the legal owner. The Claimant and his wife agreed, for the sake of attempting to build the business, it would be best, because of the nature of the business being male dominated and because of the reputation of the Claimant, that they not make a big deal out of the legal ownership change.

However, the Claimant believed that the OFFICE was entitled to know all of the facts surrounding his situation. Therefore, the Claimant was forthright with the OFFICE and revealed all of the above information, information about the inheritance, family business, income, activities etc., many years before the USPS investigation took place in May of 1990. The Claimant offered more information than requested by the Office and he even invited them to ask him whatever they wanted to, by stating: If you need any further information please let me know.

Interview with Scott Grewell, store manager, dated February 21, 1991;

REBUTTAL: This was Douillette`s Exhibit 38. In Scott Grewell`s (store manager at that time and current owner of the business) affidavit, dated December 1, 1992 he states the following on page 2 of his affidavit: During my interview with Mr. Douillette and Mr. Flowers on February 21, 1991 I gave them an example as to why Mr. Zampino`s picture was on envelopes etc. regarding advertising. I stated, Would you go to an automotive repair shop if you knew a woman owned it? We have a similar male image type business because of mostly drummers being male and prejudice towards females. I have read over Mr. Douillette`s report of my interview with him, and have noticed that statement was omitted from his report. Additionally in his report, several inaccurate statements and/or comments were made which are out of context compared to what I said or meant.

Joint tax returns from 1985 through 1990;

REBUTTAL: This was Douillette`s Exhibit 50-55. Every Schedule C and SE forms on these tax returns clearly list Diane J. Zampino as the legal owner of the business. Through the tax returns and checks written, Diane J. Zampino NOT the Claimant received a financial benefit from the business. The 1985 tax return lists Diane J. Zampino on schedules C and SE; however, the bookkeeper made an error in listing the Claimant`s social security number instead of Diane`s. This was later corrected with Social Security because the CPA had documentation to prove the error. In all probability the bookkeeper made the same error in 1979 and 1980. However, those tax returns were not available when Donald Sauerbier, CPA, discovered the 1985 error made by the deceased bookkeeper. All of these tax returns substantiate the Claimant`s statements to the OFFICE. However, Ms. Leiton ignored this exculpatory evidence in her June 21, 2001 decision.

Advertisements for the Shop, with a picture of the claimant as the owner (1986);

REBUTTAL: This was Douillette`s Exhibit 39-41. Mr. Douillette assumes that the Claimant`s picture on advertisements for the business constitutes legal ownership of that business. Not one of the exhibits states that the Claimant is the owner as Ms. Leiton states in her June 21, 2001 decision.

The Claimant`s picture was on advertisements because he was the founder of the business and was the one who had the teaching reputation since 1961. The Claimant`s picture and family (Zampino name) reputation were used to promote the business. See the two (2) affidavits by Scott Grewell, Taunya (Moncrief) Dietry, Deana Zampino, Helen Zampino, Diane Zampino and most importantly the two (2) affidavits by Donald Sauerbier, CPA.

A promotional pamphlet and resume from September 19, 1989, in which the claimant was running to become a member of the school board;

REBUTTAL: This was Douillette`s Exhibit 43-44. The Claimant and the Canton Postmaster were in Rotary. The Claimant sent this information to all Rotary members asking for their support to elect the Claimant onto the school board. The Canton Postmaster in turn