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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF GEORGIA
____________________
Joseph Patriot }
Plaintiff,
v.
___________________________
UNITED STATES OF AMERICA
Defendant.
COMPLIANT TO OVERTURN INVALID IRS COLLECTION DUE
PROCESS “DETERMINATION”
LAWLESSLY ISSUED PURSUANT TO 26 USC 6330
COMES NOW, Joseph Patriot, Plaintiff in this action and invokes the jurisdiction of this Court pursuant to 26 USC 6330(d)(1)(A) to set aside the “Determination” at issue.
The “Determination” at issue, (Attached as Exhibit A) was issued on August
13, 2003 and was issued by employees of the Defendant, in response to Plaintiff’s request for a “Collection Due Process Hearing.” That “determination” was issued
in violation of law, as the following will show.
1) On October 10, 2002 Plaintiff requested the Collection Due Process Hearing guaranteed to him in 26 USC 6320(b) & 6330(b) both of which Sections being
captioned: “Right to fair hearing”. (See Plaintiff’s request, attached as Exhibit B)
2) The “hearing” concerned whether or not the United States could legally seize Plaintiff’s property pursuant to Internal Revenue Code Section 6331, in
connection with $500 frivolous “penalties” which had been imposed by employees of the United States and even though no court order, writ of garnishment or writ of attachment had ever been issued by any court of law with respect to any of Plaintiff’s property.
3) The “penalties,” which the United States now seeks to extract by distrait, is not supported by any testimony nor is it supported by any documented evidence, as those terms are legally understood.
4) On 8/04/2002, Patriot sent the settlement officer a letter stating that he intended to make a tape recording of the meeting Pursuant to code section 7521 and publication 17, as well as have a court reporter present. (Letter attached as exhibit C).
5) Plaintiff has collection alternatives. He has a wife and four minor children to support. Patriot owns no real estate and has no savings, assets or investments. He owns an ancient pickup truck and a heavily leaned van. He is a working man who does not make enough to support his family. Patriot’s pay is well below the federal poverty guidelines for a family with four small children.
6) At said hearing, Plaintiff had a right to set forth collection alternatives. However, the settlement officer would not hear it. And was not willing to
negotiate with an impoverished working man. The appeals officer violated Plaintiff’s rights. Therefore this case should be sent back to the IRS for a full
and complete CDPH.
7) The hearing was held on 5-27-03. Plaintiff was present and attempted to make an audio recording of the hearing but was denied that right. Therefore, there is no transcript of the hearing for that day, even thought the events of that hearing are hotly contested.
8) Plaintiff was denied his right under the law to make an audio recording of the meeting. Section 7521 states in relevant part, “"Any officer or employee of the Internal Revenue Service in connection with any in-person interview with any taxpayer relating to the determination or collection of any tax shall, upon advance request (Exhibit C) of such taxpayer, allow the taxpayer to make an audio
recording of such interview…”
(Emphasis added) "The Secretary of the Treasury cannot by his regulation alter or amend a Revenue Law." (Morrill vs. Jones 106 U.S. 466). Plaintiff’s CDP Hearing was held in violation of law and the determination should be set-aside on this basis alone.
9) The hearing in question was enacted by Congress as a result of disclosures emanating from the Senate Finance Committee’s 1997 investigation of the
Internal Revenue Service [1], which revealed widespread, lawless IRS seizures of property, and extensive violations by the IRS of taxpayers’
rights. [2]
10) Section 6330(a)(1) provides, in pertinent part, that “No levy may be made on any property or right to property of any person unless the Secretary has notified such person in writing of their right to a hearing under this section before such levy is made.”
11) Section 6330(c)(1) provides “The appeals officer shall at the hearing obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met.”
12) Section 6330(c)(2) provides that “The person may raise at the hearing any relevant issue relating to the unpaid tax or the proposed levy…”
13) Section 6330(c)(2)(B) provides that “The person may also raise at the hearing challenges to the existence…of the underlying liability” if the person “did not receive any statutory notice of deficiency for such tax liability…”
14) Section 6330(c)(3) specifically states (in pertinent part) that the “determination by an appeals officer under this subsection shall take into consideration – (A) the verification presented under paragraph (1).” (Emphasis added)
15) In accordance with such provisions of Section 6330, Plaintiff sent in a timely request for a CDP hearing as shown in Exhibit C.
16) As shown in that request, Plaintiff asked that the appeals officer have at the hearing:
a) The “verification from the Secretary that the requirement of any applicable law or administrative procedure have been met” as required by 6330(c)(1).
b) The document that supported the imposition of the penalty or the “signed” document as referred to in 26 USC 6751(b)) which would reveal the names of the
Defendant’s employees who imposed the “frivolous” penalty.
c) The Federal ID numbers of the Defendant’s employees who imposed the “frivolous penalty.”
d) The Delegation Orders from the Secretary delegating to those persons who imposed the “frivolous penalty” their authority for doing so.[3]
e) The official job description(s) of those IRS employees who imposed the “frivolous” penalty. (Footnote #3 was also applicable to this request)
f) Since Code Sections 6001 and 6011 (Code Sections to which the public is specifically directed to in the Privacy Act Notice of the 1040 booklet) advise the public that they need only “comply with regulations,” appellant requested the appeals officer to identify or produce the Treasury Department regulation that allows Defendant’s employees to impose the “frivolous” penalty, and the regulation that required Plaintiff to pay such a penalty.
g) Plaintiff also notified Defendant that at the hearing he would challenge the “existence of the underlying liability” of the tax that generated the
“frivolous penalty” as he was authorized to do by Code Section 6330(c)(2)(B) since Plaintiff did not receive any Deficiency Notice with respect to such a “tax
liability”
h) Plaintiff also requested that the appeals officer produce documented proof that the Secretary authorized the instant collection action and that the Attorney General or his delegate “directed” that this collection action be commenced as they are required to do pursuant to Code Section 7401.
i) No provision in 26 USC 6330 provides that appeals officers can dictate conditions under which they will agree to conduct the CDP hearings required
by law, or that allows them to dictate to taxpayers the issues they will consider at the hearings prior to the CDP hearings being held.
17) Plaintiff informed the appeals officer that he never received a valid Deficiency Notice – that is one signed by the Secretary or someone with delegated
authority from him.
18) That since he never received a valid deficiency notice, he would be “challenging the existence of the underlying tax liability” as Plaintiff is authorized to do in Code Section 6330(c)(2)(b).
19) Plaintiff informed the appeals officer that he never received the statutory “Notice and Demand” for payment in connection with the alleged taxes due.
20) Based on all of the above, Plaintiff asked that the appeals officer have at the CDP hearing:
a) The “verification from the Secretary that the requirement of any applicable law or administrative procedure have been met” as required by 6330(c)(1).
b) Since Plaintiff believed that “no valid assessment” for the income taxes allegedly due (to support the threatened levy action) was ever made, Plaintiff therefore wanted to see “a copy of the ‘Summary Record of Assessment (Form 23C) together with the ‘pertinent parts of the assessment etc. etc. etc….’as provided for in Treas. Reg. 301.6203-1)” and a copy of the tax return from which the alleged
assessment was made.
c) Since all valid assessments must emanate from a filed return, proof that such a “filed return” exists is another “relevant” issue that Plaintiff had a right to raise. Therefore, Plaintiff requested that the appeals officer produce or identify the income tax return from which the alleged assessment for the
income taxes at issue was made.
d) Plaintiff asked for some documented proof that the statutory “Notice and Demand” for the payment of the income taxes allegedly due (as required by Code
Sections 6303, 6321 and 6331) be provided.
e) Plaintiff also requested that the appeals officer produce documented proof that the Secretary authorized the instant collection action and that the Attorney General or his delegate “directed” that this collection action be commenced as they are required to do pursuant to Code Section 7401.
19) Plaintiff has collection alternatives. He has a wife and four minor children to support. Patriot owns no real estate and has no savings, assets or investments. He owns an ancient pickup truck and a heavily leaned van. He is a working man who does not make enough to support his family. Thompson’s pay is well below the federal poverty guidelines for a family with four small children.
21) At said hearing, Plaintiff had a right to set forth collection alternatives. However, the settlement officer would not hear it. And was not willing to
negotiate with an impoverished working man. The appeals officer violated Plaintiff’s rights. Therefore this case should be sent back to the IRS for a full
and complete CDPH.
22) In Keene v. Commissioner, 121 T.C. No. 2, July 8, 2003, The Tax court said, “Accordingly, we hold that, pursuant to section 7521(a)(1), petitioner is entitled to audio record his section 6330 hearing with the Appeals Office.”
23) Consequently, Plaintiff’s rights were violated and the notice of determination should be overturned and new collection Due Process hearing should be
scheduled.
Based on all the above, Plaintiff requests that this
Honorable Court::
1) Declare invalid the IRS “determination” of October 25, 2002, since no valid hearing was ever held.
2) Order the government to reimburse Plaintiff for all of (his) costs in bringing this action.
Pursuant to 28 U.S.C. 1746, I certify under penalty of perjury that the foregoing is true and correct.
Executed on September 11, 2003.
Respectfully submitted
___________________
Joseph Patriot, pro per
176 Summer land RD.
Buchanan, GA 30113
770-888-8888
-------------------------------------
[1] Since the I.R.S. was never created by an Act of
Congress (the Office of the Commissioner was created
in the Tax Act of 1861), it is basically incorrect to
refer to the I.R.S. as if it were a legitimate,
government agency.
[2] Based on those hearings, Senator William Roth who
was then Chairman of the Committee, wrote a book
entitled “The Power to Destroy (Atlantic Monthly
Press, New York City, 1999) which states, on page 73,
“The Internal Revenue Service itself admit that far
too many of the countless assessments, seizures,
levies, and liens that the IRS executes each year are
inappropriate and in open violation of law.” The
first “bullet” on the book’s dust jacket states that
the book reveals, “How the IRS …plays judge, jury,
and executioner, depriving countless taxpayers of
basic rights.” Examples of such criminal IRS behavior
(i.e. criminal United States behavior) are strewn
liberally throughout the book.
3 In making such a request, Plaintiff was guided by
the advise of the Supreme Court who warned in Federal
Crop Insurance v. A.A. Merrill, 332 US 380 that those
who “Enter into an arrangement with the government
take a risk” if they do not “ascertain” that those
who “purport” to “act for the government stay within
the bounds of their authority.” (Citations omitted).
In addition, Defendant’s Solicitor General argued in
this case, “Those dealing with an officer or agent of
the United States must be held to have had notice of
the limitations upon his authority.” Therefore, based
on the Supreme Court’s warning, and the expectations
of Defendant’s Solicitor General, the Defendant was
duty bound to produce the Delegation Orders requested,
but Defendant did not do so. |