United States Tax Court
Larry D. )
Petitioner ) Docket No. 127xxx
)
V. )
)
Commissioner of Internal Revenue )
Respondent )
Petitioner, Larry D., hereby files his opposition to the government's motion for summary judgment dated October 15, 2009, based upon the following reasons:
1. Respondent alleges that Petitioner “in fact” refused delivery of the notice of deficiency. The fact is, the certified letter was first delivered according to counsel’s (exhibit C), August 16, 2007 to 415 Sherwood Dr., Mansfield, OH. 44904, 12 years after Petitioner had moved from this address. How could Petitioner refuse a letter that he didn’t even know existed? In fact, this is the first time Petitioner has seen this letter marked (exhibit A) in Respondent’s Motion, leaving this Petitioner wondering if it even is an authentic document.
2. Petitioner disagrees with the validity of the assessments and figures stated in (exhibit A), the notice of deficiency letter and because Petitioner was not able to contest the amount of the underlying tax liability, Petitioner asks this court to reject Respondent’s Motion for Summary Judgment and allow Petitioner his due process rights.
3. Petitioner filed for Collection Due Process Hearing (herein referred to as CDPH) dated June 6, 2008 timely (counsel’s exhibit E). In the Attachment to the CDPH request Petitioner clearly stated he disagreed with the administrative record and agreed to bring appropriate forms and records to the face-to-face hearing. The tax assessments are incorrect and Petitioner requested his CDPH to be heard by an impartial officer as required by IRC 6330. These are not “frivolous” arguments nor are they “shop-worn” arguments as alleged by the IRS in the Notice of Determination (counsel’s exhibit M). Yet all relevant issues by taxpayer failed to be mentioned in this Notice. Petitioner also requested in his CDPH request, a copy of the Notice of Deficiency which he never received, and doubted any existed at that time.
4. During this audit and collection process, Petitioner has been denied independent judicial review as guaranteed to him under the due process clause in the U.S. Constitution 5th and 14th amendments.
5. Pursuant to IRC sections 6320 and 6330, Petitioner requested Collection Due Process Hearings for tax period 2003, within the 30-day time period allowed by statute.
6. Congress has set forth three pre-conditions for 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.
7. Petitioner complied with all of these. The IRS has preconditions for taxpayer not to raise political, Constitutional and religious concerns. Petitioner complied with this.
8. 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 he meets with him. Petitioner is not required to do these and did not.
9. The IRS illegally and wrongfully withheld a hearing and has violated his statutory rights and administrative due process rights to appear at a hearing.
10(a). The definition of a hearing found in Merriam-Webster's Dictionary of Law C1996.
1: 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 especially a person who may be deprived of his or her rights, to present his/her 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.
2: a trial in equity practice Merriam-Webster's Dictionary of Law 1996.
10(b). The definition of a hearing found in 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 render a decision on basis of that evidence. People v. Ivenditti, 276 C.A.2d 178, 80 Cal.Rptr. 761,762. The parties proceeded against or otherwise involved have right to be heard, in much the same manner as a trial and such proceedings may terminate in final order. See e.g. 5 U.S.C.A. $ 556.
11. Petitioner disagrees with all of the Notice of Determination except as admitted above.
12. In the case of Schultz II, the US 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. 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, Case Cite: 413 F.3d 297(2d) NY), 95 A.F.T.R.2d 2005-3007, 2005 WL 152090
Petitioner requested independent review of the administrative action, but to date has not received such.
13. 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 6330, Petitioners are entitled to a CDPH at a location convenient to them. In this case, the CDPH was requested at Brunswick, GA.
Petitioner made many offers of collections alternative during the Appeal process. The IRS did not comply with Petitioner's request for a financial statement form to complete and the IRS form 4340 which had the information Petitioner needed to complete the OIC form. Had the Settlement Officer complied with Petitioner's simple request, they would have had the completed financial statement and OIC forms prior to the hearing.
Taxpayer 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 6330.
14. Petitioner's rights were violated and the (1) motion for summary judgment and (2) motion for penalty under IRC 6623 should be overturned and a new, proper CDPH should be scheduled. The settlement officer was not a person entitled to hold a CDPH.
The Umbrella of the Due Process Clause of the US Constitution, 5th and 14th amendments.
15. Plaintiff 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.
16. 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 U.S. 67, 80, 96-97 (1972) the U.S. Supreme Court recognized "the right to a prior opportunity to be heard before chattels are taken from their possessor."
"[D]ue process is afforded only by the kinds of 'notice' and 'hearing' that are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property..."Sniadach v. Family Finance Corp., at 343 ( Harlan, J., concurring). See Bell v. Burson,at 540;Goldberg v. Kelly,at 267.
17. Until Schulz II, supra the IRS has been able to conduct seizures without judicial review. The recent ruling changed how the IRS must comply with judicial review, including how it conducts CDPH. 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.
18. In conclusion, Petitioner request this case be remanded to appeals for independent judicial review of IRS’s enforcement actions through a CDP Hearing. 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.
Wherefore petitioner request relief requested hereinabove.
____________________________ Date:______________________ Larry D., Petitioner, pro se Blackshear Ga. 31516
CERTIFICATE OF SERVICE: I certify that a copy of this foregoing Opposition to Motion for Summary Judgment was served on Respondent by US Mail in a postpaid wrapper on or about this 2nd day of October, 2009 to Respondent’s at District Counsel’s office at 320 Federal Place, Room 509, Greensboro, NC 27401 and to the court clerk at 400 second St, N.W. Washington, D.C. 20217
________________________________
Larry D., Petitioner, pro se
Blackshear, GA. 31516