7609 Opposition To Motion To Dismiss
Plaintiff, hereby files this Amendment to his original Opposition to the U.S.
Governments Motion to Dismiss or for Summary Judgment.
A. Failure to Timely Effect Service of Process, and
Lack of Jurisdiction over Subject Matter.
The US Attorney claims that service of process was not perfected. That statement
is false. Plaintiff has indeed “instituted a proceeding to quash” per 26 CFR section
301.7609-(b)
(2). The code section clear states “Not withstanding any other law or Rule of Law,
any person shall have the right to begin a proceeding to quash such summons not
later than 20 days.
Such person shall mail by registered or certified mail a copy of the petition to
the person summoned and to
such office as the Secretary may direct in the notice referred to in subsection
(a)(1).
By mailing a copy of the original petition within 20 days to the summoned parties
and the Agent
who issued the summonses, Plaintiff has satisfied the requirements of code section
7609.
FRCivP Rule (4)(m) is superceded by the 26 CFR section 7609(b)(2)(A), (“Not withstanding
any law or Rule of law”…) and 7609(B). None of the cases cited by the U.S. Attorney
on this issue are controlling in this
case. Section 7609 gives Plaintiff a “substantive right” to quash a summons and
that right cannot be deprived by Rule 4 of the FRCivP.
“Rule 4(j) may supersede the forthwith service requirement contained in section
742 of the SAA only if that requirement does not involve substantive rights”. “The
forthwith service requirement is a term of the government's consent to be sued.
The requirement defines the scope of the government's liability to be sued and defines
a litigant's right to sue the government. As such, the requirement cannot be brushed
off or superseded as merely procedural”. Libby v. United States, 840 F.2d
818 (11th Cir. 03/21/1988)
“An action in the district court may not proceed according to any set of rules unless
that court has first obtained jurisdiction over the action. When the United States
is the defendant, jurisdiction lies only if the requirements of the applicable waiver
of sovereign immunity provision are met. In this case, the district court's jurisdiction
over the suit could be established only if the requirements of section 742 were
met. Thus we conclude that the forthwith service requirement of section 742 is jurisdictional,
that it involves the substantive rights of the parties, and that it was not superceded
by Rule 4(j). Sherwood v U.S., 312 U.S. at 589-90, 61 S. Ct. at 771
“In interpreting a statute, a court should always turn first to one cardinal canon
before all others. We have stated time and again that courts must presume that a
legislature says in a statute what it means and means in a statute what it says
there. When the words of a statute are unambiguous, then this first
canon is also the last:
judicial inquiry is complete.” Conn. National Bank v. Germain, 503
U.S. 249 (1992).
B. Lack of Jurisdiction over the person
As stated in Plaintiffs original Opposition to Dismiss, The IRS and The US attorney
have been properly served per 26 CFR section 7609. A certified copy of the original
petition was sent certified mail to the IRS agent who issued the summonses. Code
section 7609 does not require the revenue agent who issued the summonses sign the
certified receipt in order for service to have been proper and in accordance with
code section 7609. A
copy of that proof of service is already on file with the clerk of the court.
C. Failure to State a claim upon which Relief can be Granted
As stated in (A), above, Code section 7609 gives specific authority for any person
to bring a proceeding to quash any summonses as long as the requirements of that
code section have been met. IRS code section 7609(b)(2)(A) and (B) are jurisdictional
in nature.
Plaintiff’s compliance with these sections waives the government’s so-called sovereign
immunity. Under these sections a proceeding to quash is permitted.
D. Summary Judgment Standard
The US Attorney’s claim that Summary Judgment is warranted because there is no genuine
issue of material fact is also false. The only evidence in support of that claim
is the declaration of the agent who issued the summonses. There are a number of
disputed matters of fact with regards to the issuing of these summonses and the
agents declaration.
1. 26 CFR code section 7602(c), Notice of contact of third parties states the IRS
may not contact any person other than the taxpayer with respect to the determination
of collection of the the tax liability of such taxpayer without providing reasonable
notice in advance to the taxpayer that contacts with persons other than the taxpayer
may be made. The IRS did not send out that statutory required because the Plaintiff
never received such a notice. This notice applies to any third-party contact and
is not limited to just those being contacted through the issuance of third-party
summonses.
2. Revenue Agent Aikens claims that he is seeking information to aid in the determination
of a “Federal Tax Liability”. That classification is vague and miss-leading at best.
Revenue agent Aikens, may be discussing import taxes, custom taxes or taxes under
any other USC Title. Revenue agent Aikens fails to offer any evidence as to the
lawful purpose of examining Plaintiffs personal banking records. Plaintiff as well
as this court have no idea what “Federal tax liability” Revenue agent Aikens is
referring to. This is a fishing expedition at best and with no clarity whatsoever.
These records sought by the IRS are personal and confidential and an express purpose
for the issuance of these summonses is warranted.
3. As noted in (1) above these summonses are an abuse of power since Plaintiff never
received a notice by IRS notifying him of their intent to contact any 3rd party.
In contradiction to Agent Aikens declaration, all requirements of the Internal Revenue
Code, with respect to the issuance of summonses have not been met.
4. As stated in Plaintiff’s original Opposition on the Motion to Dismiss, the information
that the IRS may need to determine an “income” tax liability is already in their
possession. But the issuance of these summonses to determine a “Federal tax liability”
is once again confusing and vague. If “income” taxes is the “tax liability” issue
that Mr. Aikens is referring too, the Plaintiff and this court could not possibly
make that determination based on
the evidence presented by the US Attorney. This is a disputed matter of fact.
5. At this time, the Plaintiff has never received a notice of any “tax” due for
the years 1999-2000. The determination of an “income” due by the IRS could easily
be proposed to the Plaintiff based on the information already in the possession
of the government. If the IRS is attempting to make an “income” tax liability determination,
then this is clearly an abuse of power. The IRS has not shown that the investigation
is being conducted in good faith and for a legitimate purpose since they have not
clearly identified what that purpose is. U.S. v. Powell, 379 U.S. 78,85 S.
Ct. 248 (1964)
“The Service must show that the investigation will be conducted pursuant to a legitimate
purpose, that the inquiry may be relevant to the purpose, that the information sought
is not already within the Commissioner’s possession, and that the administrative
steps required by the Code have been followed. [A} court may not permit its process
to be abused. Such an abuse would take place if the summons had been issued for
an improper purpose, such as to harass the taxpayer or to put pressure on him to
settle a collateral dispute or for any other purpose reflecting on the good-faith
of the particular
investigation”. U.S. v LaSalle, 437 U.S.298, 98 S. Ct. at 42 (1978) Opposition
to Summonses
E. The government alleges that one opposing the summonses bears the burden of disproving
the actual existence of a valid civil tax determination or collection purpose. To
meet said burden, Petitioner needs adequate pre-hearing discovery. Petitioner, given
sufficient discovery, can prove:
A. No further existence of a continuing civil purpose.
B. A pre-existing institutional commitment to prosecute.
C. The failure of the summons to advance a civil purpose.
D. Improper purpose, political harassment, etc.
In his additional affidavits and Summary of Authorities, to be filed henceforth,
Petitioner will enumerate the government’s actions, which speak louder than words
and show that the true nature of this investigation and the purpose of the government
is to circumvent the traditional role of the grand jury and the other Constitutional
protections of the Petitioner as guaranteed in the Bill of Rights. IRC §7609 provided
Petitioner, as “a person who is entitled to notice of a summons”, the right to petition
to quash a summons. Obviously, the Congress meant for the suit to be meaningful,
with adequate pre-hearing discovery, plus a real evidentiary hearing with government
witnesses testifying under oath.
The Plaintiff prays that this court will dismiss the Governments Motion to Dismiss
on all grounds and permit evidentiary proceedings as was intended by code 26 CFR
code section 7609.
CERTIFICATE OF SERVICE: I do hereby certify that on this date, I sent properly to
opposing council this
pleading.
Date:__________
_______________________________
Signature
Address:________________________
_______________________________
-----------------------------------------------------------------------------------------------------------