No. _________________
_____________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________________________________________________________________
David Petitioner Petitioner v. Commissioner of Internal Revenue Respondent
_______________________________________________________________________
On Petition for A Writ Of Certiorari to The United States Court of Appeals for the Fourth Circuit
________________________________________________________________________
Petition for Writ of Certiorari
_________________________________________________________________________
David B. Greenville, SC 29601
i.
QUESTION(S) PRESENTED
1. The only question is the location of the Collection Due Process Hearing:
Is Petitionerrequired to travel five hours for his hearing when the local IRS Office is a few minutes from his home?
ii.
LIST OF PARTIES
[x] All parties appear in the caption of the case on the cover page.
[ ] All parties do not appear in the caption of the case on the cover page. A list of all parties to the proceeding in the court whose judgment is the subject of this petition is as follows:
iii.
TABLE OF CONTENTS
Page
3 Opinions Below 3 Jurisdiction 3 Constitutional and Statutory Provisions Involved 4 Statement of the Case 5 Reasons for Granting The Writ 7 Conclusion
INDEX TO APPENDICES
APPENDIX A: The Opinion of the Fourth Circuit dated March 19, 2009
APPENDIX B: The Petition for Rehearing dated April 5, 2009
APPENDIX C: The Order Denying Petition for Rehearing, June 25, 2009
TABLE OF AUTHORITIES CITED
CASES PAGE NUMBER STATUTES AND RULES: 1. The CDPH Law, IRC 6330 throughout 2. IRS Regulation 301.7605-1(d)(2) 6
IN THE SUPREME COURT OF THE UNITED STATES PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.
OPINIONS BELOW
The opinion of the United States Court of Appeals appears at Appendix A to the petition and is
[ ] reported at __________________________; or,
[ ] has been designated for publication but is not yet reported; or,
[X ] is unpublished.
JURISDICTION
A timely petition for rehearing was denied by the United States Court of Appeals Fourth on the following date: June 25, 2009, and a copy of the Opinion denying rehearing appears at Appendix C.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED:
1. IRC 6330
STATEMENT OF THE CASE
This is a Collection Due Process Hearing (hereafter CDPH) case under IRC 6330. Under this law passed in 1998 as part of the IRS Reform and Restructuring Act, all collection activities are deferred until the taxpayer has a collection hearing.
Petitioner David B. (hereafter Petitioner) timely filed his request for CDPH and was duly entitled to a collection hearing. However, his case was dismissed by the Tax Court because he unable to travel to the hearing location which was five hours away. The local IRS office was minutes away from his home.
Petitioner filed his petition to the Tax Court on November 13, 2006. On September 2, 2008, the Honorable Thomas B. Wells, Judge US Tax Court, dismissed his tax court petition for failure to appear at his collection hearing. Bach’s Motion to Vacate was filed on September 8, 2008, and denied on September the 10th.
Petitioner filed his appeal to the Fourth Circuit Court of Appeals on December 23, 2008. His appeal was denied on March 19, 2009; Appendix A. Petitioner filed his petition for rehearing (Appendix B) on April 5, 2009, which was denied without comment on June 25, 2009, Appendix C.
This petition for Writ of Certiorari follows.
REASONS FOR GRANTING THE PETITION
1. On March 19th, 2009, the Fourth Circuit affirmed by unpublished per curiam the opinion of the lower court. The Appeals Court ruled in favor of the IRS by dismissing the appeal of appellant David Petitionerpertaining to the decision of the US Tax Court. The Petition for Rehearing (App B) was filed and denied.
2. Petitioner appealed from the Tax Court order upholding the Commissioner’s proposed collection activities with respect to his tax liability for 1993. The deficiency determination was not an issue in his case.
3. As stated in the appeal brief, Petitionerappeared before the US Tax Court in Columbia, SC in February 2008. The Judge found the notice of deficiency had not been received by taxpayer and remanded this case back to the appeals division of the IRS. The court order granted Petitionera face-to-face hearing under IRC 6330. The order dated March 18th, 2008 provides “shall offer petitioner an administrative hearing at respondent’s Appeals Office located closest to petitioner’s residence (or at such other place as may be mutually agreed upon date and time)”.
4. The case law holds that the location of the Collection Hearing must be at a place convenient to the taxpayer if the Appeals Department holds appeals conferences at a nearby IRS Office. A large IRS office is close to Bach’s residence and appeals officers appear there frequently. The tax collectors scheduled taxpayer’s collection hearing at a distant city in order to prevent Petitionerfrom appearing.
5. Petitionercontested loudly and frequently the distant location.
6. Under IRS Regulation 301.7605-1(d)(2), the location of an office examination is based on taxpayer’s residence and must take place at the closest service office to the taxpayer’s residence.
7. The tax collectors refused to obey the judge’s order and scheduled the in- person hearing at a location requiring a five hour trip by Petitionerand made it impossible for him to bring his witness and representative. Petitionerappealed again to the tax court, but the administrative tribunal approved the agency’s wrongdoing.
8.The distance to the hearing was so far that Bach, an unemployed workingman, without reliable transportation and funds, was unable to attend. The agents were able to thwart the will of Congress by using their location trick. The agents kept denying Bach’s numerous requests for “and/or other place”.
9. Appeals offered Petitionera telephonic hearing but he refused because a) recording was not allowed
b) Witnesses were not allowed
c) CPA was not allowed
10. Because of the failure of the other courts to protect the rights of its citizens to protection of the laws and to allow unbridled disobedience of the law by an administrative agency, now the tax service can wage war on the citizens with no protection from the courts. The IRS will now schedule all hearings at monstrous distances making collection hearings impossible for the workingman.
11. The courts below have ignored a clear act of Congress and declared open season for the internal revenue on the taxpayers. The administrative agencies have a long history of abusing the citizens and trampling on their rights. The lower courts failed in their duty to protect Petitioner.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
__________________________ David B., pro se Date: August 22, 2009 Greenville, SC 29601
No. _____________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_________________________________________________________________
David B.
Petitioner
v.
Commissioner of Internal Revenue
Respondent
_________________________________________________________________
PROOF OF SERVICEI, David B., do swear or declare that on this date listed below, as required by Supreme Court Rule 29 I have served the enclosed MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS and PETITION FOR A WRIT OF CERIORARI on each party to the above proceeding or that party’s counsel, and on every other person required to be served, by depositing an envelope containing the above documents in the United States mail properly addressed to each of them and with first-class postage prepaid, or by delivery to a third-party commercial carrier for delivery within 3 calendar days.
The names and addresses of those served are as follows:
Kenneth W. Rosenberg, Attorney Appellate Section, DOJ, Tax Division, Appellate Section, P.O. Box 502, Washington, DC 20044I declare under penalty of perjury that the foregoing is true and correct.
___________________________ Executed on August 22. 2009.
David B.CERTIFICATE OF COMPLIANCE
As required by Supreme Court Rule 33.1(h), I certify that the petition for a writ of certiorari contains 1,336 words, excluding the parts of the petition that are exempted by Supreme Court Rule 33.1(d).
I declare under penalty of perjury that the foregoing is true and correct.
_____________________________ Executed on August 22, 2009.
David B.