UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
Val Patriot, )
Plaintiff, )
)
vs. ) CASE NO. 8:05
)
United States of America ) OPPOSITION TO UNITED STATES'MOTION TO DISMISS
and )
Internal Revenue Service )
Defendants. )
Plaintiff Val Patriot files this opposition to defendant’s motion filed February 10, 2006. Said motion should not be granted for the following reasons.
(1) By voluntarily suspended the collection actions, defendant admitted violation of law IRC 6330(e) and 6320(c).
(2) Defendant agree in his motion to a taxpayer may collect damages for wrongful collection actions under IRC 7433.
(3) Plaintiff seeks damages for wrongful collections actions under IRC 7433 for time before he filed this action on October 31, 2005.
(4) Plaintiff is not seeking any damages under IRC 7433 from defendant after the time of levy ended except for damages for failure to return illegal levied monies.
(5) This Court have jurisdiction to hear a suit for damages under IRC 7433.
I. Plaintiff response to defendant’s procedural attack.
(6) Plaintiff exhausted all administrative remedies prior this action filed on October 31, 2005. Plaintiff met with K.Wilson IRS employee number 36-07944, in spring 2001. Attended CDPH with P.L. Moret IRS employee number 36-09173, November 5, 2001.
Plaintiff petitioned a Tax Court on April 26, 2002 and won. Please see Tax Court decision enter as exhibit A in action filed on October 31, 2005. In same action enter as exhibit D-1, and D-2, IRS on November 3, 2003 (1) abated prior tax and interest, (2) on July 28, 2003 transferred overpaid credit and applied it for year 2001 and 2002.
(7) There is no any assessment after the abatement by IRS (November 3, 2003) and Tax Court order (February, 13, 2004). Defendant by voluntarily suspended the levy action admitted violation of IRC Sections 6330(e) and 6320(c). Plaintiff continued administrative remedies by contesting NFTL in a Tax Court.
II. Plaintiff response to defendant's taxpayer's request for an injunctive relief is moot.
(8) Now defendant decided to voluntarily withdraw the levy, this is another proof of violation IRC Section 6330(e) and 6320(c). Plaintiff agrees that, issues of injunction and continue of levy are settled.
Two issues still remain in dispute
(1) Sum of $5,387.11 plus interest taken unlawfully and
(2) Damages under 7433. Defendant offered plaintiff bureaucratic runaround to call IRS office and ask to administrative form to return above money taken under unlawful levy. Plaintiff called agent Helden (ID number 65-01937) about form to return above money, she advised plaintiff to write a letter to her the only form she know. Plaintiff provided letter on February 13, 2006. (Attached)
(9) Plaintiff starting from fall of 2004 wrote to above agent Helden about 15 letters, 6 of them regarding 1999 levy/lien issues.
(10) Plaintiff asks this Court to apply judicial economy, it is better to settle now then prolong further. Plaintiff will file another lawsuit after he exhaust administrative remedy under IRC 7433.
III. Plaintiff's response to defendants claims this Court is without jurisdiction.
(11) This is proof how plaintiff suffered by defendant wrongful levy. On August 12, 2005 plaintiff received check for sum $315.38 to live on for next two weeks, amount withheld was $1,346.92.
August 26, 2005 check was $ 315.38 for family of four to live on for next two weeks, amount withheld was $887.75.
September 9, 2005 check was for $ 315.38, amount withheld was $ 830.90.
September 23, 2005 check was for $ 313.38, amount withheld $834.00.
October 7, 2005 check was for $ 315.38, amount withheld was $ 759.74.
October 21, 2005 check was for $ 876.92, amount withheld was $ 382.74.
November 4, 2005 check was for $ 876.92, amount withheld was $ 231.28.
November 18, 2005 check was for $ 876.92, amount withheld was 113.78.
December 2, 2005 defendant stop withholding. During this time defendant unlawfully withheld sum total $5,387.11, denying plaintiff to be heard.
(12) A fundamental requirement of due process is "opportunity to be heard," Grannis v. Ordean, 234
(13) From Internal Revenue Manual 4.10.7.2.9.8(05-14-1999): Importance of Court Decisions
(1)."Decision made at various levels of the court system is considered to be interpretations of tax laws and may be used by either examiner or taxpayer to support a position".
(2) "Certain court cases lend more weight to a position than others. A case decided by the U.S. Supreme Court becomes law of the land and takes precedence over decisions of lower courts. The Internal Revenue Service must follow Supreme Court decisions. For examiners, Supreme court decisions have the same weight as a Code."
(14) "The district courts of the
IV. Plaintiff response to defendant conclusion.
Plaintiff request for injunctive relief is not moot. Defendant admitted to the Court to voluntarily suspend and withdrew illegal levy, a clear violation of IRC 6330(e). Plaintiff attached a second letter to agent Helden dated: September 5, 2005 where he asks her to stop withholding pursuant to 6330(e). That's why Congress passed such law USC 7433 to stop such behavior and allowed injured one to seek damages. Plaintiff shows that he exhausted administrative remedies. Court has the jurisdiction to hear this case.
CERTIFICATE OF SERVICE: I do hereby certify on this date that a copy this pleading was sent properly to opposing counsel.
____________________________________ Date:_______________________________
Val Patriot, propr.
24 Main Street
North Beach, FL 22889