UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF
WARREN PATRIOT }
Plaintiff, }
} Case No. xxxxxxx
v. }
} OPPOSITITION TO MOTION TO DISMISS
}
}
Defendant. }
_________________________________ }
Plaintiff, Warren Patriot, hereby files his opposition to the MOTION TO DISMISS by the
1. PlaintiffPatriot seeks judicial review of the IRS tax assessment under the due process clause of the United States Constitution. No government agency can take any action against any citizen absent judicial intervention. Government agents are not allowed into people's homes or people's pocketbooks without review by the independent judiciary.
THE UMBRELLA OF THE DUE PROCESS CLAUSE
2. In this case, PlaintiffPatriot appeals an IRS notice of determination pertaining to his CDPH. The government objects on grounds of lack of jurisdiction because CDPH law IRC 6330 provides for taxpayer to appeal to United States Tax Court. However, the taxpayer can appeal to District Court on the issue of tax liability on certain types of taxes.
PlaintiffPatriot admits that his income tax problem is not one to normally go to District Court. However,Patriot brings up an entirely new issue, one that can only be addressed in Article III courts. This case is based on the Schulz II decision of the Second Circuit Court of Appeals pertaining to judicial review. Everybody agrees that the United States Tax Court is unable to make a ruling of this constitutional magnitude.
This court should seize jurisdiction due to the due process issue in this case.
3. The seizure actions of virtually all other federal agencies are subject to judicial review. A hearing must be held prior to the agency seizing someone's property. In Fuentes v. Shevin, 407
“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.
4. In Sniadach v. Family Fin. Corp. of Bay View, 395 U.S. 337, 342 (1969), the U.S. Supreme Court addressed "the issue of whether a post-seizure hearing is meaningful in terms of due process and deciding that a pre-deprivation notice and opportunity to be heard is necessary absent an important governmental or public interest to the contrary" under specific circumstances.
5. 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.
6. 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" and its seizure attempts are subject to review by the independent judiciary in order to protect the rights of citizens.
7. In conclusion,Patriot requests that this court dismiss the Government’s Motion to Dismiss, and grant the relief hereinabove requested. Plaintiff requests independent judicial review of IRS’s enforcement actions. The courts have a long string of cases requiring a judicial intervention under the due process clause before state action against a citizen.
See, e.g., Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (recognizing "the right to a prior opportunity to be heard before chattels are taken from their possessor"); Sniadach v. Family Fin. Corp. of Bay View, 395 U.S. 337, 342 (1969) (addressing the issue of whether a post-seizure hearing is meaningful in terms of due process and deciding that a pre- deprivation notice and opportunity to be heard is necessary absent an important governmental or public interest to the contrary). A number of cases have discussed whether there was "a meaningful opportunity to be heard" under specific circumstances. See, e.g., Cinea v. Certo, 84 F.3d 117, 121 (3d Cir. 1996) (applying the necessarily flexible standards of due process and concluding that debtors were afforded adequate process when they were informed that criminal sanctions would be imposed if they moved the levied property without permission prior to a final determination); Huxall v. First State Bank, 842 F.2d 249, 251 (10th Cir. 1988) (concluding that debtor was not denied due process when she received several opportunities to be heard, including before entry of judgment and prior to execution on the particular property).
Therefore this court should schedule a hearing to review or scrutinize the intended IRS police state activities.
Certificate of Service: I do hereby certify that on this date, I sent properly a copy of this pleading to opposing counsel by depositing a copy thereof, first-class postage prepaid, in the
Mr. Paul I. Perez
United States Attorney
U.S. Department of Justice
2110 First Street, Suite 3-137
Fort Myers, FL 33901
_________________________________ November 10, 2005
Warren Patriot, Pro Se Party
17 Cory Lane
Palm Beach, Florida 33111
