STATE OF SOUTH CAROLINA } IN THE UNITED STATES TAX COURT
} Judge Thomas B. Wells, Room 432, 400 Second St. N.W.
COUNTY OF GREENVILLE } WASHINGTON, DC 20217
}
John M. C., } Docket No. 1690xxx
}
Petitioner, } MOTION FOR SUMMARY JUDGMENT
vs. }
}
Commissioner of Internal Revenue, } Trial Calendar: Columbia, SC
} Date: March 17, 2008, 10 a.m.
Respondent. } Strom Thurmond Federal Building, Room 817
____________________________________ } 1835 Assembly Street, Columbia, SC 29201
ATTORNEYS: Petitioner: Pro Per Respondent: Steven M. Webster (TC Bar WS0410) Fax. No.: xxx-xxx-xxxx Tel. No.: (336) 378-2120
Petitioner hereby moves this Honorable Court for summary judgment in the above-captioned matter for the following reasons.
Respondent has no proof that Petitioner received any Notice of Deficiency or Notice and Demand letter.
a) Internal Revenue Bulletin, No. 1999–7, issued February 16, 1999, states on page 20, column 1 (re I.R.C. § 6320, citing 26 C.F.R. 301.6320-1T [p. 194 attached], and T.D. 8810): “Challenges to the existence or amount of the tax liability specified in the CDP Notice may be raised only if the taxpayer did not receive a statutory notice of deficiency for such liability or did not otherwise have an opportunity to dispute such liability.” [Emphasis added][1]
b) I.R.C. § 6212 requires that the taxpayer subsequent to an examination receive a Notice of Deficiency allowing him to file a Tax Court petition within 90 days of a Notice of Deficiency.
Petitioner has repeatedly denied ever receiving such notices. The IRS does not even have any proof of service of the aforementioned Notices of Deficiency, and has admitted such in initial discovery. On December 7, 2007, Respondent admitted the following statement is true: “Admit that Respondent does not have proof of service for its alleged service upon Petitioner of a Notice of Deficiency for the years 1991 and 1992.”
The statute and case law clearly state that receipt by Petitioner of the aforementioned notices is necessary in order to proceed with lien or levy. In this case, not only did Petitioner never receive such notices, but the IRS does not even have a proof of delivery showing that the Notices of Deficiency were ever sent.
The general liens filed against Petitioner by the IRS are about fourteen (14) years old and have long since passed the statute of limitation to collect. The tax years in question are from 1991 and 1992 for which Petitioner has no existing records to confirm or challenge figures invented by the IRS Audit Division. Keeping records for sixteen (16) or seventeen (17) years is far beyond what a reasonable person should be expected to do. There is not sufficient documentation to continue either the defense or the prosecution of this case.
In discovery dated December 7, 2007, Respondent admitted that the IRS denied Petitioner a face-to-face hearing on or about May 26, 2004, in violation of Petitioner’s rights under 26 U.S.C. 6320(b) and 26 U.S.C. 6330(b).
In discovery dated December 7, 2007, Respondent admitted that no statutory Notices of Deficiency were issued for “frivolous” civil penalties imposed on Petitioner. Therefore, under the Statutes, Petitioner is entitled to adjudication of these penalties at the collections due process hearing (CDPH). The statute provides clearly in I.R.C. § 6330/6320 that for taxes wherein a Statutory Notice of Deficiency is not issued, then the CDPH becomes a hearing on the penalties. Hence, the civil penalties should be remanded to the IRS Appeals Division for adjudication of the disputed penalties.
At the very least, this case should be sent back to the IRS Appeals Division for a CDPH or the Audit Division to issue a Statutory Notice of Deficiency. And Petitioner prays that this Honorable Court consider sanctioning Respondent for bungling the case so badly in terms of procedural errors and violation of Petitioner’s statutory rights. But Petitioner is informed and believes that the most appropriate action for this Court—given the lapse of time (fourteen years) and the procedural rights violations—is to simply eradicate the imposition entirely.
Therefore, on account of the aforementioned procedural violations, the statutory limitation on time to collect, and denial of Petitioner’s statutory rights, Petitioner moves this Court for summary judgment in his favor, with costs.
a) Petitioner prays that this Court command the IRS to remove all liens against Petitioner, which have not expired—and which should have expired by statute after ten (10) years but did not;
b) And to expunge any alleged tax liability of Petitioner that has been determined through undelivered Notices of Deficiency—which thus went unchallenged by Petitioner in the 1990s.
Certification of Service: I certify that I properly delivered a copy of this pleading to Opposing Counsel Steven M. Webster, Dept. of the Treasury, IRS Office of Chief Counsel, Small Business/Self-employed Division Counsel, 320 Federal Place, Room 509, Greensboro, NC 27401, by regular U.S. Mail on January 18, 2008.
Executed in South Carolina on January 18, 2008, without prejudice:
John C., Ph.D., pro per
Greenville, SC 29606
[1] Page 24, column 2 states (T.D. 8810 re I.R.C. § 6330): “The taxpayer also may raise challenges to the existence or amount of the tax liability specified on the CDP Notice for any tax period shown on the CDP Notice if the taxpayer did not receive a statutory notice of deficiency for that tax liability or did not otherwise have an opportunity to dispute that tax liability.” Page 29, column 1 states (T.D. 8809): “Challenges to the existence or amount of the tax liability specified in the CDP Notice may be raised only if the taxpayer did not receive a statutory notice of deficiency for such liability or did not otherwise have an opportunity to dispute such liability.”