No. XXXX
Christian K. Patriot ) Appeal from the
Plaintiff-Appellant ) United States Tax Court
)
v. ) Docket No: 9348-06L
)
Defendant-Appellee ) Chief Judge
Appellant’s Opening Brief, pro se
Statement Regarding Corporate
Affiliation
Appellant hereby certifies that he is not an officer of a publicly held corporation, nor an officer of a parent, subsidiary or affiliate of a publicly held corporation. No publicly held corporation or business has any interest in the outcome of this appeal.
Table of Contents
Chapter
1 Statement
of the Case
2 Statement of Facts Relevant to a Review of the Case
2.1 Statement of Facts relevant to Levy Action
2.2 Statement of Facts relevant to Lien Action
2.3 Statement of Facts on Tax Court Actions
3 Arguments
3.1 IRS’ obstructing, of appellant’s request for a Collection Due Process
Hearing “CDPH”, does not pre-empt appellant’s right to such a hearing.
3.2 IRS’ obstructing should not remove jurisdiction from the Tax Court to
order such a hearing.
3.3 Appellant is severely prejudiced by 3.1 and 3.2.
4 Statement Regarding Oral Argument
5 Certificate of Compliance
6 Certificate of Service
Section Table
of Cases, Statutes and Authorities
Cases
Statutes
Authorities
1. Statement of the Case
1.1 On March 8, 2004 Defendant-Appellee (IRS) mailed a notice of intent to levy for
1997,1998 and 1999. Within two days, on March 10, 2004, Plaintiff-Appellant instructed his representative to respond in the best way. Two years later, on April 18, 2006 Defendant-Appellee sent a “Decision Letter” that includes the statement: “This letter is yor legal Notice of Determination, as required by law.”
That Notice of Determination informed Plaintiff-Appellant that his representative was prohibited from representing taxpayers. The representative must have complied with the prohibition since said Notice states: “Your due process hearing request was not filed —“. Based on that, said Notice states the drastic conclusion: “—there is no right to dispute a decision (made) by the Appeals Office in court”. Thus, the procedure used by Defendant-Appellee, in effect, circumvents due process laws as follows:
Mail
a Notice of Intent to levy, obstruct attempts to request a Due Process Hearing and then declare that no
Due Process can be obtained.
1.2 On Sept. 20, 2005 Defendant-Appellee sent Notice of Federal Tax Lien Filing for 1997, 1998, 1999 and 2000 and notice to a right to a hearing. On Oct. 12, 2005 . Plaintiff-Appellant mailed his timely request for a CDPH, However, Defendant-Appellee did not grant a CDPH but on April 18, 2007 Defendant-Appellee sent a Notice of Determination that can be disputed in Tax court.
1.3 On May 11, 2006 Plaintiff-Appellant petitioned US Tax Court, Washington, DC for Lien and Levy Action, as well as Re-Determination of Notice of Determination letters. Instead of a single court action, bifurcated litigation could have been pursued, one for obstruction of due process in the levy action and one for not granting a statutory CDPH in the lien action. However that would have been against federal rules of civil procedures’ rule 1.
2.1
Statement of the Facts on proposed Levy action
2.1.1. On March 8, 2004 Defendant-Appellee (IRS) mailed a notice of intent to levy for 1997, 1998 and 1999.
2.1.2. On March 10, 2004 That is, within two days, Plaintiff-Appellant instructed his representative to respond in the best way.
2.1.3 On April 18, 2006 Defendant-Appellee sent a “Decision Letter” that includes the statement: “This letter is you legal Notice of Determination, as required by law.”
2.1.4 That Notice of Determination informed Plaintiff-Appellant that his representative was disbarred due to frivolous actions against Defendant-Appellee and prohibited from representing taxpayers.
In that same communication Defendant-Appellee states “Your due process hearing request was not filed —“
Defendant-Appellee implies that Plaintiff-Appellant’s representative abided by Defendant-Appellee’s order, in not filing a CDPH request on behalf of Plaintiff-Appellant.
2.1.5 Defendant-Appellee did not timely inform Plaintiff-Appellant of the disbarment of his representative.
2.1.6 No Collection Due Process Hearing was granted
2.2 Statement
of the Facts on Lien Action
2.2.1 On Sept. 20, 2005 Defendant-Appellee sent Notice of Federal Tax Lien Filing for 1997, 1998, 1999 and 2000 and notice to a right to a hearing.
2.2.2 On Oct. 12, 2005 . Plaintiff-Appellant mailed his timely request for a CDPH setting forth Tax Court approved issues to be discussed
2.2.3. On Feb. 3, 2006 Defendant-Appellee stated that the (Court approved) issues are frivolous and scheduled a telephone conference.
2.2.4 On Feb. 16, 2006 Plaintiff-Appellant requested a recorded, face to face hearing and provided legal justification.
2.2.5. No Collection Due Process Hearing was granted
2.2.6. On April 18, 2007 Defendant-Appellee sent Notice of Determination
2.2.7 Defendant-Appellee stated that Notice of determination can be disputed in Tax Court
2.3 Statement
of the Facts on Tax Court
Action
2.3.1 On May 11, 2006 Plaintiff-Appellant petitioned US Tax Court, Washington, DC for Lien and Levy Action, as well as Re-Determination of Notice of Determination letters.
2.3.2 On July 12, 2006 Defendant-Appellee filed an Answer to Petition and requested that relief sought be denied. That Answer Contains 42 denials.
2.3.3 On Aug. 3, 2006 Plaintiff-Appellant filed Petitioner’s Reply to Respondent’s Answer. That Reply refuted all 42 denials.
2.3.4 Defendant-Appellee did not claim nor prove that the situation has ripened into a controversy. Such ripening is a prerequisite for general jurisdiction of any court..
2.3.5 Also on July 12, 2006 Defendant-Appellee filed a Motion to Dismiss for lack of jurisdiction insofar that it relates to Levy action. Defendant-Appellee stated: “did not timely request a collection due process (“CDP”) hearing.”
2.3.6 Defendant-Appellee did not claim nor prove that Plaintiff-Appellant had the opportunity to request a collection due process hearing.
2.3.7 Also on Aug. 3, 2006 Plaintiff-Appellant reminded Defendant-Appellee that Tax Court has subject matter jurisdiction to remand the matter to Appeals Office for ripening into a controversy.
2.3.8 On Oct. 10, 2006 Tax Court issued an Order to strike all references to review the Levy action.
2.3.9 On Oct. 27, 2006 Plaintiff-Appellant filed his Motion for Reconsideration of the Order. In that Motion, Plaintiff-Appellant makes it abundantly clear that he was prevented from making a timely request for a CDPH
2.3.10 Further, the Motion shows that Defendant-Appellee’s statements prove that Plaintiff-Appellant’s inability to make a timely request for a CDPH was induced by Defendant-Appellee.
2.3.11 On Jan,24, 2007 Defendant-Appellee filed his response and declared that he received Plaintiff-Appellant’s request ”more than 19 months after the date set forth in the CDP levy notice”
2.3.12 On Feb. 6, 2007 Plaintiff-Appellant filed his Reply reminding Defendant-Appellee that Plaintiff-Appellant was prevented from requesting a CDPH .
2.3.13 Plaintiff-Appellan
3 Arguments
3.1 Defendant-Appellee’s obstructing, of appellant’s request for a
Collection Due Process Hearing “CDPH”, does not pre-empt appellant’s right to
such a hearing
3.1.1 On May 11, 2006 Plaintiff-Appellant petitioned US Tax Court, Washington, DC for Lien and Levy Action, as well as Re-Determination of Notice of Determination letters. On July 12, 2006 Defendant-Appellee filed a Motion to Dismiss for lack of jurisdiction insofar that it relates to Levy action. As justification, Defendant-Appellee stated: “did not timely request a collection due process (“CDP”) hearing.” On Oct. 10, 2006 the Tax Court concurred by issuing an Order to Strike all references to review the Levy action. On Oct. 27, 2006 Plaintiff-Appellant filed his Motion for Reconsideration of the Order. In that Motion, Defendant-Appellee makes it abundantly clear that Defendant-Appellee’s representative was prevented from making a timely request for a CDPH.
3.1.2 On March 10, 2004, that is, within two days of the date on the Notice of intent to Levy, Plaintiff-Appellant instructed his representative to respond in the best way.
Unbeknownst to Plaintiff-Appellant, his representative was prohibited by Defendant-Appellee from representing taxpayers. That information is in the Notice of Determination titled “Decision Letter”, dated April 18, 2006.
3.1.3 That Notice of Determination also informed Plaintiff-Appellant that his. representative must have complied with the prohibition since said Notice states: “Your due process hearing request was not filed —“.
3..1.4 Thus, the
procedure used by Defendant-Appellee, in effect,
circumvents due process laws as follows: Mail a Notice of Intent to levy,
obstruct attempts to request a Due Process
Hearing and then declare that no Due Process can be obtained.
3.1.5 Circumvention of due process laws is not
tolerated. In the Schulz II case, the Second Circuit Court of Appeals June 29,
2005, Case No. 04-0196-ev the court stated: The Rule of due process upon which
we relied in Schultz I, and upon which
we rely now, can be stated thus: any legislative
scheme that denies subjects an opportunity to seek judicial review of
administrative orders except by refusing to comply, and so put
themselves in immediate jeopardy of possible penalties “so heavy as to prohibit
resort to that remedy,” Oklahoma
Operating Co v. Love, 252 U.S. 331, 333 (1920), runs
afoul of the due process requirements of the Fifth and Fourteenth Amendments,
3.2 IRS’
obstructing should not remove jurisdiction from the Tax Court to
order such a hearing.
3.2.1 The Schultz case, supra clearly shows that there is no way around due process laws.
3.3 Plaintiff
Appellant is severely prejudiced by 3.1 and 3.2.
3.3.1