UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO 

Shakti Patriot                                      )
  PETITIONER                                        ) 
                                                    )  CASE NUMBER: MC-05
                                                    )
vs                                                  )OPPOSITION TO “SUPPLEMENTAL MOTION TO DISMISS PETITION
The United States, Wells Fargo Bank,                )TO QUASH SUMMONS ISSUED TO WELLS FARGO”
Bank of America, Northwest Bank                     )
  RESPONDENTs                                       )

 

Petitioner Shakti Patriot, pursuant to the Special Procedures for Third Party Summonses, 26 USC § 7609, hereby files this OPPOSITION TO “SUPPLENTAL MOTION TO DISMISS PETITION TO QUASH SUMMONS ISSUED TO WELLS FARGO” to halt the above named third party record keepers from revealing Petitioner's private records to the Internal Revenue Service, and to quash the summonses. The Petitioner respectfully moves this Court to disregard the government’s supplemental motion to dismiss on the following grounds:

 

The Court Does Have the Jurisdiction to Consider the Petition

1.         The Court has jurisdiction over this action to quash the summons that was issued to Wells Fargo Bank NM (New Mexico) because:

a)      Wells Fargo Bank NM, NA resides at 200 Lomas Boulevard NW, Albuquerque, New Mexico and is thus to be found within this Court’s district and its jurisdiction, as required by Internal Revenue Code (IRC) §7609(h), which says in relevant part, “The United States district court for the district within which the person to be summoned resides or is found shall have jurisdiction to hear and determine any proceedings brought under subsection (b)(2), (f) or (g)”.  And let it be noted that the instant action was brought under subsection (b)(2).

b)      The Third-Party and the Records that are sought by the summons reside and are to be found within jurisdiction of the Court.

c)      The Summons has been issued to Well Fargo New Mexico as can be see from the TO: field in the summons (Exhibit A). In addition, the attachment to the summons (Exhibit B) states on the first line: “ATTACHMENT TO SUMMONS ISSUED TO: Wells Fargo Bank NM NA” (bold emphasis added)

 

2.         The cases cited by Respondent in support of its Motion to Dismiss support Petitioner’s position rather than Respondent’s.

a)      The Court in Masat vs. United States, 745 F.2d 985 (5th Cir., 1984) noted that the case involved a  “third-party record-keeper summons which was directed to corporation with principal place of business in California, for records and documents located in California …. The United District Court for the Southern District of Texas did not have jurisdiction over petition to quash IRS third-party record-keeper summons directed to corporation with principal place of business in California and seeking records and documents located in California …”  Presumably, such a petition to quash would have to be brought in a U.S. District Court in California.  In the same way, Petitioner must bring this action in New Mexico rather than Oregon, since the corporation summoned – Wells Fargo Bank NM N.A. – and the records and documents sought are located in New Mexico.

b)      The Ninth Circuit, in Fortney vs. United States, 59 F.3d 117, 119 (9th Cir., 1995), said, “The District Court lacked jurisdiction over third-party tax summonses, where the third party neither resided nor was found within jurisdiction of district court. 26 U.S.C.A. § 7609(h)(1).”  Again we find the requirement to bring the petition in the state where the corporation summoned and the records sought reside and are found, and in the instant case that means this Court for the District of New Mexico.

c)       The Sixth Circuit said, in Beck vs. United States, 60 Fed.App. 551, 2003 WL 1194253 (6th Cir (Ky.)??), 91 A.F.T.R 2d 2003-1345 “The district court lacked jurisdiction … because none of those third-party record keepers resides in or may be found within the Eastern District of Kentucky.”  This also supports Petitioner’s  decision to petition this Court in New Mexico.

d)      Finally, the Court said, in Scharringhausen vs. United States, 91 A.F.T.R.2d 2003-651 ?? (6th S.D. Cal. 2003??)  “In this case the party summoned, MasterCard International, has offices in the states of New York, Washington DC, Florida, Delaware and Georgia as well as various foreign countries. … It does not have an office in California. … Thus, this court lacks the jurisdiction over the petition to quash the MasterCard International summons because MasterCard International neither resides in nor can be found within the Southern District of California.”  The conclusion is the same as above.  Wells Fargo Bank NM N.A. has offices in the state of New Mexico and it can be found in the state New Mexico, and therefore this Court has jurisdiction to hear and determine the instant matter.

 

What is common for all cited cases is that in every case the state where the summons has been issued and the state where the summoned third-party resides and the state where records are located are all the same. Not in a single cited case was the summons issued to a business residing in one state for the records residing in another state.  By doing just that, according to the Respondent, Agent Cordova has created judicial nightmare. For even if the court where business resides has jurisdiction over that business, that does not also imply that the court has jurisdiction over the records that are in state where the court does not have jurisdiction.

 

3.         District Court in Oregon does not have jurisdiction over Wells Fargo Bank in New Mexico. If it did, then it would have jurisdiction over every Wells Fargo branch in every of the fifty states. That obviously is not true.

 

4.         According to the Respondent’s interpretation of the summons, Agent Cordova has summoned a third-party residing in Oregon and requested it to appear in New Mexico with its Oregon records.

 

5.         To conclude, the summons for Well Fargo Bank NM N.A. was mailed to a branch outside the jurisdiction of this U.S. District Court for the District of New Mexico, but was issued to the branch which is with in this jurisdiction and it sought records which are also within this jurisdiction.  This U.S. District Court for the District of New Mexico is clearly the only proper place to bring this action and it clearly has jurisdiction in this case.

 

6.         If summons to Wells Fargo Bank NM, NA is permitted to proceed as summon to Wells Fargo Bank in Portland, Oregon then only records from the bank’s Oregon branches should be allowed to be given on this summons.

WHEREFORE, the Petitioner Srbislav Stanojevich, respectfully requests that the Petition to Quash Summons be honored because the government has not shown any reasons to dismiss it.

CERTIFICATE OF SERVICE: I hereby certify that on or about the above date a copy of this affidavit was mailed to opposing parties.

 

Date: May 16, 2005                                       ___________________________________
                                                                       Petitioner, pro se Srbislav Stanojevich Ph.D.


                                                                       Address:  c/o 3100 Jane Pl NE #M105

                                                                                       Albuquerque, New Mexico 87111