Warren Thomas Barry, }
Plaintiff }
}
vs. } Case No. 2:06-cv-284-FtM-29SPC
} Status Report
UNITED STATES OF AMERICA, }
Defendant }
Plaintiff, Warren Thomas Barry, hereby files this Status Report in compliance with the Court’s ORDER TO SHOW CAUSE filed on April 2, 2007.
The IRS does not have an administrative appeal for the five hundred dollar penalty, nor a ninety day letter nor a provision for appeal in Tax Court. The Congress, in IRC §6330, requires the U.S. District Court to decide on the validity of any tax issue not already covered by the Notice of Deficiency system.
The Internal Revenue Code is so complex and confusing that nobody knows what it means. Barry, a loyal American, questioned the IRS, with no response, he paid money to experts and in short, did his best to understand the Code. However, the IRS did not approve the 1040 form that Barry filed, then, they issued a fine of $500.00 and refused to discuss this issue at a proper hearing. The amount of the fine should be less if the law is constitutional.
Umbrella of the Due Process Clause of the US Constitution, 5th & 14th Amendments
a) 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.
b) Because 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.
c) Until Schulz II, the IRS has been able to conduct seizures without judicial review. The recent ruling changed how the IRS must comply with judicial review, including how it conducts CDP hearings. Now the IRS too is finally constrained by the “fundamental principles of due process” ad its seizure attempts are subject to review by the independent judiciary in order to protect the rights of citizens.
The appellees do not suggest that these [contractual] provisions waived the appellants’ right to a full post-seizure hearing to determine whether those events had, in fact, occurred and to consider any other available defenses. By the same token, the language of the purported waiver provisions did not waive the appellants’ constitutional right to a pre-seizure hearing of some kind...We hold that the Florida and Pennsylvania prejudgment replevin provisions work a deprivation of property without due process of law insofar as they deny the right to a prior opportunity to be heard before chattels are taken from their possessor...Since the essential reason for the requirement of a prior hearing is to prevent unfair and mistaken deprivations of property, however, it is axiomatic that the hearing must provide a real test. “[D]ue process is afforded only by the kinds of ‘notice’ and ‘hearing’ that are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property... ”Sniadach v. Family Finance Corp., supra, at 343 (Harlan, J., concurring). See Bell v. Burson, supra, at 540; Goldberg v. Kelly, supra, at 267.
Recent investigations of the problem have disclosed the grave injustices made possible by prejudgment garnishment whereby the sole opportunity to be heard comes after the taking [as noted by Congressman Sullivan, Chairman of the House Subcommittee on Consumer Affairs who held extensive hearings on this and related problems]...Thus, the U.S. Supreme Court ruled that where the taking of one’s property is so obvious [, egregious, and sinister in effect], it needs no extended argument to conclude that absent notice and a prior hearing (cf. Coe v. Armour Fertilizer Works, 237 U.S. 413, 423) this prejudgment garnishment procedure violates the fundamental principles of due process [Sniadach, supra].
Wherefore Plaintiff requests the relief stated above.
Certificate of Service: I do hereby certify that on this date, I sent properly a copy of this pleading to the party listed below by depositing a copy thereof, first-class postage prepaid, in the United States mail addressed to the following:
Philip Doyle
U.S. Dept. of Justice
Ben Franklin Station
P.O. Box 14198
Washington, DC 20044
____________________________ April 9, 2006 Warren Thomas Barry, Petitioner pro se 5362 Colony Court Cape Coral, Florida 33904 239-281-7900