US TAX COURT
WASHINGTON DC
Thomas Wane M. )
) DOCKET #4048xxx
)
V. ) Opposition to Motion
) for Summary Judgment
Commissioner Internal Revenue )
Petitioner above hereby objects to Respondent’s Motion for Summary Judgment dated February 26, 2008, based upon the following grounds:
1. Tax Court Rule 121 provides that summary adjudication may be rendered as a matter of law only if there is no genuine issue as to any material fact.
2. There are several material facts in dispute. The District Counsel is basing his entire case on positions that he classifies as frivolous and that Petitioner used years ago. These ancient arguments are not relevant to the case at hand. District Counsel is retaliating against taxpayer because he won his appeal to the Tax Court. On July 7, 2006, the tax court remanded this case back to the IRS appeals division because of the wrong-doing of District Counsel, etc.
3. On remand, an in-person hearing was held September 6, 2006. However the second conference was defective and invalid for many reasons, including:
A. Taxpayer brought to the conference his experts and witnesses but the appeals officer would not allow them in the room and would not allow them to testify.
B. The appeals officer had in the conference room with taxpayer a heavily armed CID agent who intimidated and terrorized taxpayer and his assistant.
C. The hearing officer did not allow taxpayer to produce the evidence that he was current with tax filings nor to provide financial information in support of the collection alternatives he wished to raise. Further he was unable to present any such information because his experts and witnesses were not allowed in attendance at the hearing in order to present the information.
Petitioner has limited education and no knowledge of IRS procedures. He relied upon his experts who were prepared to testify and prove his case. After being notified that the room was too small for his witnesses, taxpayer asked to switch his representatives for his experts. His assistants in the conference room were not allowed to trade places with the experts who were in the waiting room. Taxpayer received no prior notification that he was not allowed to have witnesses with him or that his assistants would not be allowed to switch places with the experts.
D. The appeals officer ruled against Petitioner for not filing tax returns, but did not prove that he made enough money that he had to file those years. Petitioner was out of work most of that time and did not make enough income to meet the filing threshold. He was eligible for collection alternatives if he had no obligation to file.
4. The Government in greatly concerned about taxpayer’s membership in the “Patriot Network” a political organization advocating tax reform. Petitioner is an American citizen and has a right to join and support political organizations and to hold, believe political ideology including tax reform. District Counsel should be admonished for attacking this citizen’s political beliefs and all such arguments should be removed from the record.
The government also holds against taxpayer the fact that his assistant was Robert Clarkson. Further the government claims that the “Patriot Network” is a “tax protestor organization” that promotes “tax protestor arguments.” However, competent and able District Counsel has not found one single argument on the Patriot Network website that is listed on the IRS published list of “frivolous and groundless arguments.” Highly-paid lawyer for the Commissioner has no evidence whatsoever that Clarkson or the Patriot Network promotes arguments listed as frivolous.
District Counsel knows very well that Clarkson advocates taxpayers follow the rules in tax court, learning the procedures and upholding The Rule of Law. Those who follow Clarkson’s advice win many cases in the courts because the Commissioner’s employees do not obey the rules and their supervisors do not make them. Therefore the courts, to maintain stability in the system, rule against the Commissioner because his agents take short cuts, disregard known procedures and insult the judges, especially the fine gentlemen on the Tax Court bench.
5. IRC 7452 provides: Sec. 7452. - Representation of parties
“No qualified person shall be denied admission to practice before the Tax Court because of his failure to be a member of any profession or calling.”
As the IRS admitted, Petitioner had his representative Robert Clarkson there to represent him, but he was not allowed to do so. Therefore, this case should be returned to appeals so Petitioner can have a decent CDP hearing.
The IRS takes the position that only the rich and the powerful can have representation at IRS conferences. Denial of Petitioner’s chosen representative is clear case of discrimination based on wealth. The Congress provided in IRC 7452 that the taxpayers could have their own representative.
6. Petitioner incorporates by reference his Status Report dated October 10, 2006 and his Opposition dated November 8, 2006 to the CIR Status Report.
7. In several prior letters, Petitioner clearly stated that he would bring a court reporter and witnesses. The appeals officer also would not allow the court reporter in the room. The law is very clear that Petitioner is entitled to a court reporter. Also Rev. Proc. 68-29 provides that the taxpayer is entitled to bring witnesses to assist in development of the facts.
8. At the appeals hearing, the IRS refused to allow Petitioner’s two witness to come into the conference to present their information and assist him in developing facts in the case. Therefore, Petitioner has not had his hearing as this court so ordered and is required in IRC §6330. Consequently, this case should be remanded to the appeals division for a full and proper CDPH, as the law requires.
9. The appeals officer has not presented proof that taxpayer has been given proper notice and demand for taxes.
10. At the hearing Petitioner did not present any frivolous arguments nor did his assistant, Robert Clarkson. His assistant was not classified as his representative and was not allowed to assert anything. District Counsel’s statement to this effect is untrue.
11. Taxpayer requests permission from the Court to file a memorandum of law to support this Opposition and to supplement this hastily prepared response. District Counsel filed at the last minute his Summary Judgment in order to deny Petitioner time to research the case law to counter the well documented dispositive motion with numerous citations. A continuance is needed for taxpayer to file his summary of authorities.
12. In Conclusion, District Counsel is beating up on an impoverished citizen who does not have the resources that are available to the government. This case should be remanded a second time to the appeals office so that a proper hearing will be held for Petitioner.
Certificate of Service: I do hereby certify that on this date I sent properly a copy of this pleading to opposing counsel.
________________________ Date: April 1, 2008 Thomas Wane M. Ashville, NC 28803-10116