IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
JOHN C. CALHOUN, }
}
Plaintiff,
vs. } Case No. 6:04CV2455
Defendant }
____________________________________}
Pursuant to Rules 52 and 54 FRCivP, Plaintiff John Calhoun hereby files his motion for reconsideration and/or alteration of the judgment of the Honorable Henry Floyd, Judge USD-SC, dated July 29, 2005. This motion is based on the following reasons.
1. The
Calhoun filed a reply to the U.S. Attorney to correct and point out this mistake in the facts on the morning that the Hon. Judge Floyd entered judgment against Calhoun. This reply dated July 29, 2005 was filed within the time period prescribed by the court’s rules. But it appears that the Judge did not read it since his decision was entered the same day.
2. Calhoun largely agrees with the U.S. Attorney on the matter regarding Schultz I. However, of even greater interest is the U.S. Attorney’s blunder in confusing the follow-up Schulz II case decided June 29, 2005 with the earlier Schulz I case decided on January 25, 2005. Either the U.S. Attorney has really done poor research or she is using a subterfuge tactic to conceal the effect of this new case law. Nothing that the U.S. Attorney says in her recent response in any way negates Calhoun’s argument in his Supplemental brief of July 13, 2005.
In Schulz II, the Court held:
The rule of due process upon which we relied in Schulz 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. This is so even if “in the proceedings for contempt the validity of the original order may be assailed.” Id. 1 at 335; see also Reisman, 375, 2 U.S . at 446; Ex parte Young, 209
In saying “any legislative scheme” and specifying “administrative orders”, the Court broadened its ruling to include not only IRS summonses but also all other IRS administrative edicts.
3. On account of Schulz II, the IRS must comply with the judicial decisions set forth for other institutions that attempt to collect debts. The debtor is entitled to an independent judge to scrutinize the enforcement activities of all collection agencies. Accordingly, Calhoun has requested independent review of the administrative action taken against him by the IRS. He has written to the IRS requesting that the appropriate and necessary forms for Calhoun to comply with the mandate of the 2nd Circuit in Schulz II.
4. Insofar as the regulations are concerned, Calhoun contends that the U.S. Attorney and the IRS are far too generous in granting themselves wide authority to alter the statute passed by Congress or to create new law through regulations. The regulations are supposed to amplify the statute (or fill in the gaps) rather than replace or counter it. It is simply not fair for the IRS to bring up secret regulations that no one knows about and then to attempt to hold people accountable to those clandestine rules.
5. Congress set forth three preconditions for a Collections Due Process Hearing:
(1) Plaintiff must make a request
(2) Plaintiff must make a request in a timely manner
(3) Plaintiff must state the purpose of the hearing which includes collection alternatives, procedure irregularities, spousal relief, and tax liability in some cases.
If Congress wanted to set forth the other preconditions that the IRS claims must be met then why did they not so indicate in the statute? Calhoun complied with each of the three items set forth by Congress. The IRS has additional preconditions for a Collections Due Process Hearing, viz. that a taxpayer is not to raise political, constitutional and religious concerns. Calhoun complied with these preconditions too. So why is Calhoun being harassed by the IRS and denied a face-to-face hearing which is his right under the statute?
6. The IRS illegally and wrongfully withheld a Collections Due Process Hearing from Calhoun and the IRS violated Calhoun’s statutory rights and administrative due process right to appear at a Collections Due Process Hearing. Calhoun disagrees with all of the Notice of Determination, and never received a Notice of Deficiency until some 12 years after the tax years in question. The IRS mailed the alleged original Notice of Deficiency to a known bad address.
In conclusion, Calhoun requests that this Court order the reopening of a Collections Due Process Hearing, and that the Judge would require the IRS to reschedule an in-person hearing as the statute requires.
Certificate of Service: I do hereby certify that on this date I delivered properly a copy of this pleading to opposing counsel.
Executed on August 5, 2005.
Respectfully submitted,
___________________
John C. Calhoun, Ph.D., pro se
P.O. Box 25