Beverly Patriot ) DOCKET
#____________________
Petitioner )
) Petition
for Lien or Levy Action
v. ) (Collection
Action)
)
Commissioner Internal
Revenue ) Petition for
Re-Determination of
Respondent ) Notice
of Determination on CDPH
Petitioner Beverly S. Patriot hereby petitions
the US Tax Court for a Re-determination of the Notice of Determination, dated
May 9, 2007, based upon the following reasons:
1. Pursuant to IRC §§ 6320
and 6330, Petitioner requested a face-to-face Collection Due Process Hearing
for the tax period 1993 within the 30-day time period allowed by statute.
The IRS Atlanta Appeals Office issued a “Notice Of Determination Concerning Collection Action(s) Under Section 6320
and/or 6330” dated May 9, 2007. This denied Petitioner’s lawful request
and is hereby appealed.
To be filed separately,
is the supplement to this petition which will discuss the individual
particulars in this case.
2. Congress has set forth three pre-conditions for Collection Due
Process Hearing (herein referred to as CDPH):
A. Petitioner must make request.
B. Petitioner must make request in a timely
manner, 30 days.
C. Petitioner must
state the purpose of the hearing which includes collection alternatives,
procedure irregularities, spousal relief and tax liability in some cases.
3. Petitioner complied with all of these. Further, the IRS has an
extra precondition for taxpayer not to raise political, Constitutional and
religious concerns. Petitioner complied with this extra requirement.
4. The IRS has other irregular and interesting preconditions such as
filling out forms and submitting a payment schedule. These requirements are
impossible since Petitioner does not know what the IRS wants until she meets
with the IRS. Petitioner is not required to do these, and did not. The elected
representatives of the People did not vote these mandatory actions.
5. The IRS illegally and
wrongfully did not allow an in-person hearing and violated Petitioner’s statutory
and administrative due process rights. Petitioner’s rights under the
administrative procedure code include an opportunity to appear before the
fact-finding tribunal.
The U.S. Tax Court has held many times that the law requires an in-person hearing. Marett v. CIR, Docket # 4048-061, decided 7 Jul 06; Shell v. CIR, Docket # 20188-05L, decided 31 May 06; Nelson v. CIR, Docket # 13212-05L, decided 7 Nov 05.
6. The definition of a
hearing found in:
A. Merriam-Webster's
Dictionary of Law - 1996:
A proceeding of relative
formality at which evidence and argument may be presented on the matter at
issue to be decided by a person or body having decision-making authority
(compare trial)
Note: The purpose of a hearing is to provide the
opportunity for each side of a dispute, and esp. a person who may be deprived
of his or her rights, to present its position. A hearing, along with notice, is
a fundamental part of procedural due process. Hearings are also held, as for
example, by a legislature or an administrative agency, for the purpose of
gathering information and hearing the testimony of witnesses.
B. Blacks Law Dictionary
- 6th Edition:
A proceeding of relative
formality (though generally less formal than a trial), generally public, with a
definite issues of fact or law to be tried, in which witnesses are heard and
evidence presented. It is a proceeding where evidence is taken to
determine issue all fact and rendered decision on basis of that evidence. People
v. Ivenditti, 276 C.A.2d 178, 80
7. Petitioner disagrees with all of the Notice of Determination
except as admitted above.
8. In the case of Schulz II, the U.S.
Court of Appeals for the 2nd Circuit issued a definitive ruling:
Independent judicial
review is required for all IRS collection enforcement activities. Now, the IRS
is like landlords, banks and loan companies who need a court hearing before
state action. The Debtor is entitled to an independent judge to scrutinize the
enforcement activities of all collection agencies.
Harsh actions are no
longer allowed without the acquiescence or intervention from a judge. A judge
is defined as holding a lifetime appointment with no diminishment in salary. Schulz
v. IRS, 2nd Circuit, June 2005,
413 F.3d 297(2d)NY, 95 A.F.T.R.2d 2005-3007, 2005 WL 152090
Petitioner herby
requests independent review of the administrative action. Please send the
appropriate and necessary forms for Petitioner to comply with the mandate of
the 2nd Circuit in Schultz II, supra.
9. Petitioner requested a hearing (meaning a face to face hearing)
within the time period and therefore is entitled to an in-person
hearing. Under IRC §§6320 and 6330, Petitioner is entitled to a CDPH at a
location convenient to her.
Petitioner was not given
the opportunity to raise any relevant issue relating to the unpaid tax or the
proposed levy at a hearing in accordance with IRC §§ 6320 and/or 6330(C).
At
the in-person hearing, which must be scheduled, Petitioner will be present in
person and bring with her a tape recorder, witness and a representative. Please
provide assistance in passing the tape recorder through security.
10. Petitioner’s rights were violated. The Notice of Determination
should be overturned, and a new proper CDP hearing should be
scheduled. The Settlement Officer was not a person authorized to hold a
CDPH.
THE UMBRELLA OF
THE DUE PROCESS CLAUSE OF
THE
11. Petitioner seeks judicial review of the IRS tax assessment under the
due process clause of the United States Constitution. No government agency
can take any action against any Citizen absent judicial intervention.
Government agents are not allowed into people's homes or people's pocketbooks
without review by the independent judiciary.
12. The seizure actions of virtually all other
federal agencies are subject to judicial review. A hearing must be held prior
to the agency seizing someone's property. In Fuentes v. Shevin, 407
"The appellees do
not suggest that these [contractual] provisions waived the appellants' right to
a full post-seizure hearing to determine whether those events had, in fact,
occurred and to consider any other available defenses. By the same token, the
language of the purported waiver provisions did not waive the appellants'
constitutional right to a pre-seizure hearing of some kind... We hold that the
13. In Sniadach v. Family Fin. Corp. of Bay View,
395 U.S. 337, 342 (1969), the U.S. Supreme Court addressed “the issue of
whether a post-seizure hearing is meaningful in terms of due process and
deciding that a pre-deprivation notice and opportunity to be heard is necessary
absent an important governmental or public interest to the contrary” under
specific circumstances.
14. Recent investigations of the problem have
disclosed the grave injustices made possible by prejudgment garnishment whereby
the sole opportunity to be heard comes after the taking [as noted by
Congressman Sullivan, Chairman of the House Subcommittee on Consumer Affairs,
who held extensive hearings on this and related problems]... Thus, the U.S.
Supreme Court ruled that where the taking of one's property is so obvious,
egregious, and sinister in effect, it needs no extended argument to conclude
that, absent notice and a prior hearing (cf. Coe v. Armour Fertilizer Works,
237 U.S. 413, 423), this prejudgment garnishment procedure violates the
fundamental principles of due process.
15. Until Schulz II, supra, the IRS had been able to conduct seizures without judicial review. The
recent ruling changed how the IRS must comply with judicial review, including
how it conducts CDP hearings. Now, the IRS also is finally constrained by the
"fundamental principles of due process", and its seizure attempts are
subject to review by the independent judiciary in order to protect the rights
of Citizens.
16. In conclusion, Petitioner requests independent judicial review of
IRS’s enforcement actions. The courts have a long string of cases
requiring a judicial intervention under the due process clause before state
action against a Citizen. Therefore, this court should schedule a hearing to
review or scrutinize the intended IRS police state activities. Jun07
WHEREFORE,
Petitioner requests that the Notice of Determination be overturned and that a
new, proper CDPH be scheduled.
Beverly Patriot, pro se
Dahlonega, Georgia