STATEMENT OF ISSUES TO MERIT EN BANC CONSIDERATION
Petitioner David G. T. has been denied due process by the IRS and the Courts. Petitionerwas denied discovery by the trial judge, the only means Petitionerhas to uncover the truth and expose the errors of the IRS. The requirement for judicial due process is secured by the Fourth, Fifth, Sixth, Seventh and Fourteenth Amendments to the U.S. Constitution. This fundamental denial of due process was passed over without comment by this Court in its per curiam decision of July 8, 2009.
STATEMENT OF COURSE OF PROCEEDINGS & DISPOSITION OF CASE
Petitioner brought this second appeal following the decision of Northern District of Georgia Judge Clarence Cooper granting Defendant IRS’s motion for summary judgment in Petitioner’s case involving adverse determinations by IRS Appeals Office in April 2005. In Petitioner’s first appeal to This Court, a prior decision of Judge Cooper’s was vacated and remanded by This Court in Dec. 2006 when it ruled that Cooper had abused his discretion in dismissing Petitioner’s case.
After remand, in Sept. 2008 Judge Cooper entered summary judgment in favor of Defendant IRS and ordered Petitioner to pay defendant’s costs of litigation. Petitioner filed a second notice of appeal before This Court in Nov. 2008. In Jan. 2009 he filed a timely principal brief, which included a request for oral argument. His appeal was never set for oral argument. Instead, in July 2009, a panel decision was entered affirming the District Court’s decision.
This petition for rehearing en banc was filed within forty-five days of the panel decision.
STATEMENT OF FACTS NECESSARY TO ARGUMENT OF ISSUES
1. Petitioner filed a timely Form 1253 “Request for Collection Due Process Hearing” requesting prior to the hearing information that Congress says Petitioneris entitled to, and that the statutes say Secretary of the Treasury is obligated to furnish.
2. Except for correspondence between Petitioner and the IRS from Nov. 2004 to April 2005, Petitioner never had a hearing before the IRS.
3. Upon remand to District Court, Petitioneri n discovery phase filed requests for production of documents, admissions and interrogatories. IRS objected to and refused to answer all of Petitioner’s discovery requests, except for Interrogatory No. 6.
4. In Aug. 2007 Petitioner filed motion to compel discovery. This motion was denied by District Court in Sept. 2007.
5. Except for a status and scheduling conference with the District Court and counsel for IRS on Sept. 12, 2007, Petitioner never had a hearing.
6. No hearing before This Court was held or offered.
ARGUMENT AND AUTHORITIES
The unaddressed issue in this case by both the IRS and the Courts is procedural due process. Granted the appellant has been pro se through out this entire process, but appellant is still entitled to receive the information that the law states that he is entitled. “…[T]here must be enough information contained in the documentation created by the IRS for a court to draw conclusions about statutory compliance and whether the AO [Appeals Officer] abused his or her discretion. Here, the scant letters and Notice of Determination make those tasks difficult if not impossible.” Mesa Oil, Inc. v. United States, No. Civ.A. 00-B-851, 2000 WL 1745280 (D. Colo. Nov. 21, 2000) (unpublished),
The IRS Appeals Officer is, as the Court stated, entitled to rely on the Form 4340, Certificate of Assessment, Payment, and Other Specified Matters, to verify compliance with administrative procedures. However, that reliance is not absolute. Congress did not mandate Form 4340. This is a form created by the IRS to summarize the actions taken on the forms codified and mandated by Congress. The 4340 is deemed “presumptive” proof by the Courts; however, Petitionerhas vocally and consistently challenged that presumption in writing.
IRC § 6202 gives the Secretary the authority to establish the mode or time of making the assessment. IRC § 6203 states: “The assessment shall be made by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary. Upon request of the taxpayer, the Secretary shall furnish the taxpayer a copy of the record of assessment.” The IRC provides that the taxpayer, upon request, shall be furnished a copy of the record of assessment. The appellant/plaintiff requested the “Summary Record of Assessment” (Form 23-C) in writing. The computer equivalent of the Form 23-C is designated as RACS-006. This request was also the subject of discovery denied by the District Court. The purpose of the request is to verify that the summary accurately reflects all the information contained in the source documents. Accuracy is essential in enforcing the tax law.
One of the documents that Form 4340 summarizes is Form 23-C or RACS-006. Appellant/plaintiff’s request was ignored by the IRS from November 5, 2004, to April 14, 2005, without any mention. “A party is entitled…to know the issues on which decision will turn and to be apprised of the factual material on which the agency relies for decision so that he may rebut it. Due process clause forbids agency to use evidence in way that forecloses opportunity to offer contrary presentation.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 US 281, 300 (1974) (emphases added).
It is incredible that a government agency ignores the laws that it claims to enforce. The law specifically states that the Secretary of the Treasury “shall furnish the taxpayer a copy of the record of assessment.” It does not state that the Secretary of the Treasury shall furnish the taxpayer a summary of the record of assessment, Form 4340. The most significant matter however is that the Courts allow the IRS to ignore the law. This condoned stonewalling is, in effect, a denial of due process. Without the Courts’ approval the IRS could not get away with ignoring these requests.
It is disingenuous to hold that the appellant was not entitled to proof in addition to the Form 4340 when the entire case revolves around the issue of failure by the IRS and the Courts’ complicity in withholding the requested source documents from the appellant. This action denied the appellant the opportunity to prove any irregularity in the assessment. The opportunity is all that a taxpayer asks, but more often than not it is denied to him. As the U.S. Supreme Court has stated:
“The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system, at least as far as ‘due process’ is concerned…which is designed to enhance the search for truth in the…trial by insuring both the [petitioner] and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.” Williams v. Florida, 399 US 78, 82 (1970) (emphasis added)
Neither This Court nor the District Court had that evidence. If the Courts do not force the IRS to give Petitioner the evidence that Congress says he is entitled to, when are the Courts going to enforce it? How else can the Courts enforce it besides compelling the IRS to produce the evidence?
This Court will also recall its own unequivocal ruling in Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 918 (1993) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)), that summary judgment is justified only after all discovery has been accomplished:
"Federal Rule of Civil Procedure 56(c) authorizes summary judgment when all ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Fed.R.Civ.P. 56(c). The seminal case regarding summary judgment states:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of …party's case necessarily renders all other facts immaterial." (emphases added)
The bottom line is that the Court’s inaction in this regard causes more litigation by forcing petitioner to file separate cases to force the IRS to comply with the law and to produce the documents to which petitioner is entitled. The desire for judicial economy would lead the Courts to force administrative resolution of this matter rather than taking up the Courts’ time. It must be done some time either administratively or in Court.
A pro se litigant is, however, handicapped by the legal maneuvering by the IRS and the Courts. There is no reason to obstruct the enforcement of the law except to hide mistakes made by the IRS and protected by the Courts. All attempts by the Appellant to correct the record have been denied in error.
“[W]e follow the established rule that the state's obligation…to disclose evidence favorable to the defense, turns on the cumulative effect of all such evidence suppressed by the government… Because the net effect of the evidence withheld by the State in this case raises a reasonable probability that its disclosure would have produced a different result, [petitioner] is entitled to a new trial.” Kyles v. Whitley, 514 U.S. 419, 421-22 (1995) (emphases added)
Instead of the Courts protecting the pro se litigant, it appears that they protect the IRS even though it has thousands of attorneys protecting it from the pro se litigant. The only way pro se litigants can protect their rights is by repeated litigation. Little by little the litigants have to learn the hurdles placed in front of them and learn the legal procedures for avoiding them. As the Supreme Court has stated:
“We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of…justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.” U.S. v. Nixon, 418 U.S. 683, 709 (1974) (emphases added)
Intertwined in the due process issue is the requirement in Section 6330(c)(2)(B) which states: “The person may also raise at the hearing challenges to the existence or amount of the underlying tax liability for any tax period if the person did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability.” The IRC provides that the appeals officer must provide these documents to the person requesting the hearing. The denial of the documents requested is a denial of due process. Further, no hearing – whether formal, informal, real or imagined – ever took place between Petitionerand the IRS. “The principles of due process ‘extend to every proceeding… judicial or administrative or executive in its nature’ at which a party may be deprived of life, liberty, or property.” Cobb County School Dist. v. Barker, 271 Ga. 35, 518 S.E.2d 126 (1999) (emphasis added). The inviolability of life, liberty and property is of such paramount importance when it comes to government action, that they are the first principles mentioned in the Georgia state constitution at Article 1, § 1, Paragraphs I and II. Congress did not intend for the Collection Due Process Hearing enshrined in the 1998 IRS Restructuring and Reform Act to be perverted into a non-hearing at which no due process obtains.
CONCLUSION
It is clear that this Court values the opportunity for due process. That is the reason that this Court reversed the District Court in its decision in Case No. 06-11469, filed on Oct. 18, 2006. Here again this Court must reverse to give the pro se litigant an opportunity to prove the errors of the IRS. IRS’s rejection of Turner’s request for foundational documents – and the District Court’s refusal to enforce that right – flies in the face of Congress’s direction, and is a basis for This Court to reopen and rehear this case in order to vacate and remand case back to District Court for its consideration of that evidence.
Pursuant to 28 USC § 1746, Appellant declares under penalty of perjury that the foregoing is true and correct.
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in F.R.A.P. 32(a)(7)(B). This brief contains 2,277 words.
Prepared and submitted by: ______________________________________
David G. T., Appellant
Atlanta, Georgia 30338
CERTIFICATE OF SERVICE
I hereby certify that I have this day served the following counsel for the Defendant in this action with the foregoing “Petition for Rehearing En Banc” by hand depositing in the United States Mail a copy of same in a properly addressed envelope with adequate postage thereon:
Laurie Snyder
Appellate Section, Tax Division
Department of Justice
P.O. Box 502
Washington, D.C. 20044
This 8th day of Sept., 2009.
______________________________ David G. T. Atlanta, Georgia 30338