06-13xxx
===============================================================
In the United States Court of Appeals
For the Eleventh Circuit
Atlanta, Georgia
_______________________________________________________________________
Sheri Patriot,
Appellant
vs.
United States of America,
Appellee
________________________________________________________________________
On appeal from the United States District Court for the Middle District of Florida
_______________________________________________________________________
REPLY BRIEF
_______________________________________________________________________
Sheri Patriot, pro se
1776 Patriot Way
Freetown, USA
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STATEMENT REGARDING REPLY
Appellant realizes the instant case is not considered by the legal community as ‘earth shaking’. But sometimes, an apparent insignificant case merits a second look in order to make a just and fair-minded decision.
The complaint filed in District Court dealt with ‘due process’ under the law and ‘civil rights’ under the Constitution and Bills of Rights. Based on Appellant’s cause of action in her complaint, she believed the District Court had jurisdiction. The particular circumstances including her case being transferred out-of-state due to IRS “high inventory levels”, plus the fact she was diagnosed with two terminal diseases between June and September, 2005, made Appellant opt for an expeditious ‘local’ judicial decision to enforce the law and judicially require the IRS to permit a quick face-to-face and convenient Collection Due Process Hearing.
The instant case was NEVER about liability or amounts of alleged taxes. It was, and still is, very simply about enforcing the law which requires an in-person hearing CPDH, if requested…so basic and elementary. Common sense and logic are all this case needed from the very beginning.
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TABLE OF CONTENTS
PAGE
Statement Regarding Reply…………………………………….. i
Table of Contents………………………………………............. ii
Table of Authorities..…………………….…………………….. iii
1. Reason for Motion in Opposition to Extension...………………..…..1
2. Appellee mentions Appellant’s husband, not a party in this case…….1
3. Cause of action of Complaint….…………………………………….. 1
4. Reasons to file in District Court.………………………………….. 2
5. Reply to Appellee re Tax Court versus an Article III Court ………….4
6. Reply to Appellee re Sovereign Immunity….…….….……………… 5
7. Reply to Appellee re Phillips v. Commissioner....…………………… 6
8. Reply to Appellee re Peterson v. Kreidich ..………………………… 6
9. Appellee misinterprets Schulz II decision..……………………...........7
10. Appellee fails to address "Paperwork Reduction Act”…………............8
11. Summary and Conclusion……..……………….……....….…………..10
Certificate of Service…...…………………..………………………...........13
Exhibits A, B, C
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TABLE OF AUTHORITIES
CASES: PAGE(S)
Peterson v. Kreidich 139 Fed. Appx. 134 (11th Cir. 2005) May 13, 2005.…….................6, 7, 10
Phillips v. Commissioner, 283 U.S. 589, 595-97, 51 S. Ct. 608 (1931) ……..……………. …. 6
Oklahoma Operating Co. v. Love, 252 U.S. 331, 333 (1920)…………………………………. 8
Reisman, 375, 2 U.S. at 446; Ex parte Young, 209 U.S. 123, 147-48 (1908)…………………. 8
Schulz v. IRS (a.k.a. Schulz I) January, 2005………………………………………….….…… 7
Schulz v. IRS (a.k.a. Schulz II), 413 F. 3d 297 (2d Cir. June 29, 2005)…………..………… 7, 8
STATUTES AND REGULATIONS:
IRC 6330…………………………………………………………………...………..........2, 7, 12
IRS Restructuring and Reform Act of 1998 [RRA 98] ……………………………..…………. 6
26 U.S.C. 6330 …………………………………………………………………………...... …. 6
44 U.S.C. 3500 – 3520 “Paperwork Reduction Act” ..………………………….……………8, 9
44 U.S.C. 3512 “Paperwork Reduction Act” ………………………………………….......... 8, 9
MISCELLANEOUS:
Lectric Law Library’s Legal Lexicon – Article III Courts……………………………………… 4
Lectric Law Library’s Legal Lexicon – Sovereign Immunity…………………………………... 5
1. Appellant, Patriot, submitted a Motion in Opposition on September 22, 2006, with regard to Appellee’s, Motion for Extension to submit their brief. The main argument for the opposition was the fact that Appellant believed the response brief would be substantially identical to the Appellee’s response brief in a pending appeal, Warren Thomas Patriot v. United States, 11th Cir. No. 06-12817-JJ, and therefore an extension for an additional month of time was not really necessary. Upon review of both Appellee briefs for the two cases, with the exception of the change of names, and dates, Appellee briefs are substantially identical. This issue is revisited again only to demonstrate to this Court that the Motion in Opposition was clearly accurate and was not submitted frivolously
2. In Appellee’s brief, on page 3, a footnote has been included mentioning a similar pending appeal by Appellant’s husband. Does that have a bearing on the instant case? Is that some type of message for this Court? Appellant is confused why Appellee would include such a statement in their brief.
3. Appellant has purposely never included in her complaint, in her motions, nor in her briefs with the lower court or with this Court, anything debatable about the letter of determination issued June 29, 2005. This case has never been about tax liability or amounts of alleged taxes. All Appellant did was ask the District Court in Lee County, Florida to declare said letter or notice of determination to be invalid and to require the Internal Revenue Service, (herein after called IRS), to reschedule a ‘face-to-face’ Collection Due Process Hearing, (herein after called CDPH), for the Appellant (as required by IRC 6330) as soon as possible in a convenient location for the Appellant.
Subsequent to filing her request for a CPDH, Appellant was notified in a letter from the IRS (attached and made a part hereof as Exhibit A) that her case would be in Plantation , Florida . Later she was notified that due to “high inventory levels”, her CPDH was moved to Richmond , Virginia (attached and made a part hereof as Exhibit B). Applicant requested her CPDH to be transferred back to Florida so she could have her requested required face-to-face hearing. The IRS refused. (Incidentally, the IRS has a large branch office in Fort Myers , FL which is very convenient).
4. In July, 2005, when Appellant decided to file her complaint to try to obtain a face-to-face CDPH, the decision was made to file in the District Court in Fort Myers , FL , which is about a 20 minute car ride for Appellant. The Tax Courts are hours away in Tampa and Miami , FL. The question of jurisdiction between the District Court versus the Tax Court as to which court was the ‘right’ court to tell a government agency to follow the government’s rules and permit a face-to-face CDP hearing for the Appellant did not appeared to be paramount, or appropriate since, as noted in Appellee’s Statement Regarding Oral Argument,….“the appeal presents a settled question of law regarding the Tax Court’s exclusive jurisdiction over collection-due-process cases involving income tax “liabilities”. The instant case is NOT about liability….it is only about a properly requested ‘face-to-face’ hearing which is legally required, but was refused…..nothing more. Required due process did not occur.
Coincidentally, in June, 2005, a personal and private issue arose. Appellant was informed by a liver specialist that she needed to begin treatment for liver disease, Hepatitis C, and if that was not enough, three months later she was diagnosed with melanoma and underwent surgery to remove the tumor. At those times, it was not possible for Appellant to travel any distance. (medical proofs attached and made a part hereof as Exhibit C).
It is the Appellant’s understanding that a ‘Collection Due Process Hearing’, is a legislatively mandated meeting between the government’s collection agency, the IRS, and alleged taxpayers for the sole purpose of resolving any questions or problems pertaining to the ‘collection’ of alleged taxes. As a layperson, the Appellant believes the majority, if not all, CDPH cases deal with the collection of ‘income’ tax. With that premise in mind, Appellant wants to refer to the last sentence in footnote 4, Page 9, of the Appellee’s Brief. “Accordingly, after October 16, 2006, the district courts no longer have jurisdiction to hear any CDP cases”. Apparently, the District Courts did have jurisdiction to hear some CDP cases prior to October 16, 2006. It should be a fair statement that those cases did not deal with ‘liability’. Since the instant case does not deal with ‘liability’, this case should have fallen within the jurisdiction of the District Court since this case was filed prior to Oct. 16, 2006 when the District Court still had jurisdiction of some cases.
5. The Tax Court is not an Article III Court according to The ‘Lectric Law Library’s Legal Lexicon found by Appellant on-line via Google.
ARTICLE III COURTS – These are federal courts established by, or under Article III of the U.S. Constitution which states: ‘The judicial Power of the United States , shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.’
These courts include:
Supreme Court – One court with national jurisdiction; Courts of Appeals – 12 Geographic-based and one for the Federal Circuit; District Courts – 94 in 50 states, District of Columbia and Puerto Rico along with their subordinate bankruptcy courts, and; Court of International Trade.
There is an extensive explanation of federal courts’ power and the cases over which the Constitution gives them authority as identified in Article III, Section 2.
Nowhere in the above definition is the Tax Court mentioned, even as a subordinate court.
However, on Page 6 of the Appellee’s brief, Appellee states “This Court and others have recognized, moreover, that the Tax Court may indeed hear constitutional claims”. Yet the Appellee makes no reference to a fact that Congress has ordained or established the Tax Court as a new ‘member’ of Article III Courts? Are “others” another definition of Congress? Does our government stoop so low with the limited waiver of sovereign immunity to include an IRS agent breaking the law and refusing to sit down in-person, face-to-face with the Appellant to conduct a CDPH?
6. Based on the definition of ‘Sovereign Immunity’ found in The ‘Lectric Law Library’s Lexicon, Appellant understands it is possible for the government to be free from liability, but said immunity does not preclude a search for truth in a trial.
SOVEREIGN IMMUNITY – A doctrine precluding the institution of a suit against the sovereign [government] without its consent. Though commonly believed to be rooted in English law, it is actually rooted in the inherent nature of power and the ability of those who hold power to shield themselves.
Federal sovereign immunity is a defense to liability rather than a right to be free from trial.
7. In footnote 5 on page 11 & 12 of the Brief for the Appellee, Appellee states the Appellant’s claims are baseless and cites Phillips v. Commissioner, 283 U.S. 589, 595-97, 51 S. Ct. 608 (1931). Is Appellee suggesting this Court ignore current law, the IRS Restructuring and Reform Act of 1998? Apparently, the Appellee would have Appellant, without a legal face-to-face hearing, submit to the IRS extortion now; make payment now, and later sue the government for a tax refund as her remedy. The IRS has denied Appellant a face-to-face hearing in violation of the intention of Congress in 26 U.S.C. 6330, even though Appellant followed the correct procedure in requesting one. Appellant has had no opportunity to raise important new issues, and the IRS is stonewalling by trying to ‘collect’ without a proper CDPH. This is not a “baseless” claim. It is a fact!
8. Appellant disagrees with Appellee’s implication and Appellee’s attempt to suggest this instant case is about a tax liability issue. Appellee cites, Peterson v. Kreidich 139 Fed. Appx. 134 (11th Cir. 2005), in support of their position, stating Peterson v. Kreidich is similar. However, that case is not on point with the instant case. Appellant reiterates; the pertinent issues in Appellant’s case are different than Peterson v. Kreidich. Appellant did follow the correct procedures to get an in-person (or face-to-face) hearing. Peterson did not timely request a CDP hearing, and therefore was only entitled to an “equivalent hearing” which is not subject to judicial review. Appellant timely filed her request for a CDPH whereby she took positions which were acceptable to the IRS and copied right out of IRC 6330. Therefore, Appellant is entitled to a proper face-to-face CDPH. Further, the court found that Peterson was required to file his appeal in tax court due to the fact that the Peterson case dealt with income tax ‘liability’. This appeal, nor the District Court case from which it springs, is not about income tax liability, it is about due process and the denial of Patriot’s constitutional rights.
9. Further, Appellee is now trying to squirm away from the Schulz II decision (June 2005), by wrongly ascribing the first ruling in Schulz v. IRS known as Schulz I(January 2005) to the reaffirmation ruling known as Schulz II. The Schulz II holding was decided months after the Peterson v. Kreidich decision. The judicial review issue which was elevated in the Second Circuit’s Schulz II decision (Schulz v. IRS, 413 F.3d 297, 95 A.F.T.R.2d 2005-3007, 2005 WL 152090 (June 29, 2005) must be addressed.
In Schulz II, the Appellate 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 U.S. 123, 147-48 (1908). [Bold emphasis added]
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.
10. In addition, Appellant believes the Court should keep in mind one of the issues she wants to raise at her future face-to-face CDPH mentioned in her brief. It is the continuous IRS violation of the law 44 U.S.C. 3500 – 3520 "Paperwork Reduction Act". In Section 3512 of the "Paperwork Reduction Act" (PRA), titled "Public Protection," it states that no person shall be subject to any penalty for failing to comply with a collection of information (such as a 1040 form), if the request/form does not display a valid control number assigned by the Office of Management and Budget (OMB) in accordance with the requirements of the Act, or if the agency fails to inform the person who is to respond to the collection of information, that he or she is not required to respond to the collection of information request/form unless it displays a valid control number. The 1040 form does not display a valid control number issued by the OMB, and has not for many years!! Furthermore, in Section 3512 Congress went on to authorize that the protection provided by Section 3512 may be raised in the form of a complete defense at any time during the agency administrative process (such as an IRS Tax Court or a Collection Due Process Hearing) or judicial action applicable thereto (such as this case). (Bold print and underline added as emphasis to show this Court irrefutable evidence of Appellee willfully ignoring, denying, and thwarting the law; stonewalling and throwing up imaginary roadblocks to Patriot’s judicial remedy). Appellant observes that Appellee made no mention of 44 U.S.C. 3500 – 3520 in their response brief. There is nothing the Appellee can submit to this Court to defend or excuse the IRS for their bad behavior and lawlessness in violation of this law. The facts are the facts. It is not a matter of interpretation. The IRS, with full knowledge, requires and expects taxpayers to fill out and sign, under penalty of perjury, ‘fraudulent’ 1040 forms every year.
According to current law, a face-to-face Collection Due Process Hearing is mandated when requested and the IRS refused to permit the face-to-face hearing to occur. The district court was not asked to determine income tax liability, nor was it asked to determine the amount of alleged income tax. The lower court was only asked to determine whether or not Appellant’s rights had been violated by not allowing the legislatively required face-to-face hearing requested by Appellant. The elected representatives of the people intended a face-to-face hearing when writing the CDPH legislation because the presence of witnesses and the use of a tape recorder was not excluded from the law. It is very difficult to have witnesses and a tape recorder during a telephone or correspondence hearing. Appellant was denied witnesses and the use of a tape recorder because her request for a face-to-face hearing was denied. It is clear, the lower court erred by not making the decision to invalidate the Letter of Determination and order the IRS to permit a face-to-face hearing for Patriot.
It is common knowledge most taxpayers will do just about anything to
avoid personally visiting with an IRS agent. The Appellant, on the contrary, a physically sick woman, is trying very hard to have an in-person CDPH. It is very suspect and strange that such a simple legal request is denied. What is causing the IRS to refuse to sit down face-to-face and meet with Patriot. In so doing, this government agency flagrantly and arrogantly breaks their own law?
11. In conclusion, Appellant summarizes the following:
· Unlike Peterson v. Kreidich, Appellant timely filed her request for a CPDH and the facts and outcome of that case are NOT on point with the instant case.
· Schulz II did elevate IRS administrative edicts such as a notice of determination into judicial review.
· The transfer of Appellant’s case from Plantation , Florida to Richmond , Virginia due to IRS “high inventory levels” negatively affected the outcome of Appellant’s case.
· The District Court did have jurisdiction over some CDPH cases when tax ‘liability’ was not the cause of the complaint. The District Court erred by dismissing this case and should have granted the Appellant’s requests which are restated below.
Appellant believed her arguments to the lower court were sufficient to prevail. She is a private person and did not want to tell this Court about her physical problems, but under the circumstances now, it appears necessary. Time is precious and that was another reason for the Motion in Opposition to the unneeded Extension of Time for the Appellee’s brief.
Appellant hopes this Court with its wisdom will see through the maze of cites and legalism presented by the Appellee which are not really on point with the relief the Appellant is seeking…..a quick convenient face-to-face CDP hearing. Appellant knows this Court has the power and authority to right the error of the lower court.
Therefore, Appellant respectfully reiterates her appeal to this Honorable Court for relief from over-zealous bureaucrats by requesting this Court order the following:
(a) declare invalid the IRS Notice of Determination of June 29, 2005, since no valid hearing was ever held,
(b) order the reopening and rescheduling of a CDPH, with the requirement that the IRS permit an in-person, face-to-face, hearing as the statute requires in IRC 6330, as soon as possible, in a convenient location to Appellant,
(c) order the government to reimburse Patriot for all of her costs in bringing this action, and the previous actions in U.S. District Court,
(d) reprimand IRS agents for their unwillingness to allow Patriot to obtain the face-to-face CDP hearing as legally required and requested by Appellant in 2005.
Certificate of Service: I do hereby certify that on this date, I sent properly a copy of this Brief to opposing counsel by depositing a copy thereof, postage prepaid, in the United States mail addressed to:
Andrea R. Tebbets
Curtis C. Pett
USDOJ, Tax Division
PO BOX 502
WASHINGTON , DC 20044-0502
Respectfully submitted,
_________________________________Executed on November 13, 2006
Sheri Patriot, pro se
1776 Patriot Way
Freetown, USA