John B. R. Motion to Vacate on Adjudication

US TAX COURT
WASHINGTON, DC

John B. R.                     ) 
              Petitioner       )
                               )    DOCKET # 215xxxx
    V.                         )    Motion to Vacate
                               ) 
Commissioner Internal Revenue  ) 
              Respondent       )

Petitioner above-named hereby files a Motion to Vacate the order of The Honorable Julian I. Jacobs, USTC, dated July 15, 2009, based on the following grounds:

1. The main issue in this case (and an important one) is whether on adjudication or separate determination is required at the CDPH for the frivolous return penalty

2. Judge Jacob said order was clear, easy to understand and well written. If allowed to do so, petitioner would like to thank Judge Jacob for his extra effort in this case. Further, District Counsel Stephen Webster has filed clear and concise pleadings. Therefore, the issues are well focused and entered into the record. Petitioner hopefully has also submitted well-written and concise pleadings. Therefore, the issues are well focused to aid the Appellate Court for making a full and fair decision.

3. This case only deals with the $500 penalty under IRC 6702 against taxpayer for filing possible frivolous returns in 2001 and 2002. The IRS imposed the two penalties without issuing a statutory notice of deficiency (SNOD).

4. Taxpayer availed himself of his statutory rights under IRC 6330 to request a CDPH. Uncontested facts include: (1) His CDPH request was timely and appropriate; (2) he clearly and unmistakably made numerous requests for an in-person hearing; (3) the appeals department clearly and definitely denied him a face-to-face hearing; (4) no SNOD was issued on the penalties: (5) the Commissioner accused petitioner of raising in his CDPH request various issues that are frivolous; (6) taxpayer frequently and fervently denied that he had done so; (7) the CIR never listed or furnished any frivolous arguments before the Appeals Division or the Tax Court: (8) because of the false allegation, the settlement officer denied the F2F hearing; (9) the appeals officer offered a telephone hearing; and (10) and Petitioner had no penalty determination before the appeals.

5. IRC 6330 clearly provides that taxpayer in a frivolous return penalty case is entitled at the CDPH to an adjudication or determination on the validity of said penalty or assessment. Taxpayer clearly stated that he wanted non-judicial review of the return penalty as required by the collection hearing law in his February 11, 2009 attachment to the CDPH request.

6. Petitioner in his Supplement to Petition for Redetermination dated September 5, 2007, stated in paragraph 8:

“This case deals with the $500 Civil Penalty under IRC 6702. No Statutory Notice of Deficiency has been issued, and therefore this case has not been adjudicated. IRC 6330 provides that taxes imposed without a Tax Court trial would be subject to due process by way of CDPH. For a small number of types of taxes, the tax liability may be adjudicated during the CDPH process. The frivolous penalty fits this criteria.

Therefore, the petitioner is entitled to a Tax Court hearing on the tax liability issue. Please schedule a hearing for me, and send me the necessary forms and instructions.”

7. On February 11, 2009, taxpayer filed his Motion for Adjudication(titled “Petition to Adjudicate Frivolous Penalty”) clearly requesting and stating that the appeals department has a requirement by Congress to hold a hearing to adjudicate the 6702 penalty. Said petition attached as Exhibit A.

8. Judge Jacobs held on page nine of his order: “Because no notice of deficiency was sent with respect to the section 6702 frivolous return penalty, petitioner was entitled to contest the penalty at his section 6330 hearing”

9. The Internal Revenue Code is so complex and confusing that nobody knows what it means. Taxpayer had always filed his tax returns timely and appropriate. Due to his disability and mental confusion, he fell under the sway of militant anti-income tax zealots who persuaded him to file tax returns based on the foreign income exclusion. This tax tactic has now been classified by the IRS as frivolous and groundless and is now published on their website as such for all taxpayers to see.

10. However, in 2002 and 2003, Petitioner had no notice that this type of tax return would result in penalties. The IRS did not issue fair warning, but penalized Petitioner for tax work which was reasonable to the average man.

11. Taxpayer has no education, training or experience with tax law or procedure, or with the tax court and IRS administration. The tax code and procedure have been classified by the courts as complex and confusing. Nobody knows what it says or means. Further, Petitioner paid so-called tax experts big bucks for their advice, which led to the penalties.

12. Taxpayer now readily admits that his tax returns are now unacceptable to the IRS. If given a chance, Petitioner would have recalled the tax returns now classified as frivolous and filed standard 1040’s. However, he was not given that opportunity even though Congress clearly states in Section 6330 that he would be given that opportunity at collection hearing.

13. Possibly, Judge Jacobs held an adjudication of the bad return fine at the tax court trial on February 3rd, in Columbia, SC. The record does not reflect this, nor does his said order clearly state that a determination was made by him. However, Congress says the Appeals Office shall hold the frivolous penalty adjudication, not the Tax Court. Further, Petitioner received no notice that the penalty adjudication would be held at the tax court trial. Notice of an event in court is an absolute requirement under the Due Process Clause of the Constitution.

11. At said trial, Petitioner was not given the opportunity to explain why the section 6702 penalties should not be applied with respect to his submission of his 2001 and 2002 income tax returns. He received no notice that such an opportunity would be given and did not expect it because Congress said that such opportunity would be given at the CDP hearing. Taxpayer is not a lawyer or CPA and is completely unable to exercise any such opportunity without notice. As the record clearly notes, Taxpayer is disabled and unable to protect his interests without preparation. Preparation is based upon notice.

12. Possibly, Judge Jacobs held an adjudication of the bad return fine. However, Congress does not allow the Tax Court to do so. And if he does, then the government must submit a brief on that issue, which they did not. Petitioner was taken by surprise and had no opportunity to prepare and file legal arguments on his position. Petitioner was a victim of trial by ambush, which is prohibited under the Due Process Clause in said blessed Constitution. Petitioner had no opportunity to present his adequate explanation on the assessment of said penalty.

13. To impose the Section 6702 penalty, the IRS must prove three things:

a. The taxpayer filed an incomplete tax return

b. The return must lack information

c. Taxpayer must raise positions known to be frivolous and posted on the IRS website

14. The Commissioner did not meet any of these elements because:

a. Nobody can or does file a completely accurate 1040 Form

b. No tax return is substantially correct because the tax law is such a mess

c. The IRS had not posted on their website at that time the definitions and elements of a frivolous return

d. Nobody then had notice of the arguments subject to the frivolous return penalty

15. Petitioner is an American citizen and can adhere to the principals of any political association including the Patriot Network. Nothing in the PN website deals with any foreign income exclusion or filing any type of tax return.

16. Another issue in this case is whether taxpayer is entitled to a face-to-face hearing and can refuse a telephone hearing. However, this issue is only raised herewith and not briefed because the record already has discussed that issue amply. Judge Jacobs is familiar with Petitioner’s arguments on the face-to-face conference issue, plus the same issue being briefed in many similar cases. Therefore, Petitioner will not fully brief this issue, but hereby incorporates by reference all of his previous filings on this issue.

17. Even though the Commissioner accuses Petitioner of raising frivolous issues in his CDPH request and this tax court case, his lawyer has not listed or produced a single one. Either District Counsel is incompetent or frivolous utterances by Petitioner do not exist. Petitioner stated his objections to the telephone hearing numerous times and in numerous letters to the Appeals Department.

18. Petitioner would have withdrawn his tax returns had he known that they would be classified as frivolous but did not receive an opportunity to do so. MPetitioner Petitioner learned his lesson when he received the penalty and did not file any pleadings in this court or the Appeals Department that would be considered frivolous.

19. Taxpayer requested an in-person hearing and he is entitled to it if he fulfills the requirements of the Congress. The IRS has an additional requirement that no frivolous positions be argued, however, the law does not support this.

20. His main ground for the dispute of the penalty is that the complexity of the tax code makes it impossible for anybody to understand it. Taxpayer did the best he could and he paid good money to various political activists who had no understanding of tax law and procedure. Therefore he was led to file tax returns that were not acceptable to the IRS. Prior to petitioning the tax court, he recognized a possible error and wanted to completely change his position.

21. Another issue before this court is whether he can change his position on his tax return prior to his Petition in tax court.

22. The Appeals Officer did not give taxpayer an opportunity to recall his unacceptable tax returns and submit standard ones in order to abate the fine.

23. Taxpayer did change his position prior to petitioning this court. The issue is clear that taxpayer is entitled to correct his position, withdraw unacceptable tax returns and substitute acceptable 1040’s. The grounds for the withdrawal include that the tax code has been found by the courts to be incomprehensible, unfathomable and unintelligible. Congress is the problem here, not petitionePetitioner

24. The courts upholding an unworkable law will prevent any reform and any improvement in a disastrous tax system.

25. US Tax Court has ruled many times that taxpayers are entitled to an in-person hearing in a CDPH case if they raise at least one position that is required by the Congress. In the case of Marrett v. CIR Docket 4048-061, July 7, 2006, the tax court held that one barely discernable valid position in a midst of invalid positions was sufficient to require a face-to-face hearing.

26. Taxpayer clearly and definitely made numerous requests for an in-person conference. Beyond doubt, the settlement officer denied him a face-to-face hearing. Therefore the secondary issue before this court is whether the Marrett criteria will be upheld. Or this case should be remanded to the Appeals Department to resolve this issue. The court should amend its order, change its position and send this case back to the Appeals Division. This court has the authority to recall its orders just as Petitioner has the right to also correct his mistakes.

27. In conclusion, a Motion to Vacate would be beneficial to all the parties so that the issues will be better highlighted for the appeal.

CERTIFICATE OF SERVICE: I hereby certify that on or about this date, I mailed properly a copy of this pleading to the Respondent at District Counsel’s office of 320 Federal Place, Greensboro, NC as well as the Court Clerk at 400 Second St, NW, Washington, DC. 20217-0001.

________________________DATE: July 21, 2009
John B. R.
Hoganville, GA 30230-2106

EXHIBIT A

UNITED STATES TAX COURT
WASHINGTON, D.C.

John B. R.,               )
            Petitioner    )      Docket No. 21xxxx
    v.                    )      Petition To Adjudicate 
Commissioner of Internal  )      Frivolous Penalty 
    Revenue, Respondent   )

This case deals with the $500 Civil Penalty under IRC 6702 for each year 2001 and 2002. No Statutory Notice of Deficiency has been issued, and therefore, this case has not been adjudicated. IRC 6330 provides that taxes imposed without a Tax Court trial would be subject to due process by way of CDPH. For a small number of type of taxes, the tax liability may be adjudicated during the CDPH process. The frivolous penalty fits this criteria.

Please direct the IRS Appeals to schedule such a procedure that will satisfy the above requirements, and to send petitioner all forms and instructions necessary for this procedure.

The petitioner certifies that he has mailed the opposing counsel for the IRS, MPetitioner Steven Webster, a copy of this Petition on this date.

Signed :

__________________________________ Dated : ________________________
John B. R., Petitioner, pro se             February 11, 2009
Hogansville, Georgia 30230-2106