US TAX COURT
WASHINGTON DC
Robert Freeman )
Petitioner )
v. ) Docket No. 21xx-10
Commissioner Of Internal Revenue )
Respondent ) MOTION IN LIMINE
)
Petitioner hereby moves this Court for a Motion in Limine pertaining to the below-listed documents:
Facts
The Plaintiff brings this Motion in Limine on the grounds that Respondent issued a request to the Plaintiff’s Bank (PNC Bank) for Plaintiff’s financial records using a Tax Court Subpoena in lieu of issuing a proper administrative summons in accordance with §7609.
Commissioner did not inform the Plaintiff directly of any summons or Subpoena.
On January 6, 2012, Rayna L. Walker, the Records Custodian of the PNC Bank contacted the Plaintiff with copies of the summonses stating she had “been served with a legal document directing it to produce certain records involving [Plaintiff’s] accounts with the bank.” The letter goes on to inform Plaintiff of the Bank’s intention to provide the documents “on or after the return date that is listed in the papers”, “in the absence of a court order directing the bank not to comply with this document”.
PNC Bank was given two Subpoenas, one for Robert Freeman’s financial information as an individual and the second for Robert Freeman’s financial information on behalf of Plaintiff's Business. It is on these Subpoenas that the Plaintiff brings this motion (exhibits A and B).
Respondent only served the Bank with the Subpoenas, but did not inform Plaintiff of his intentions or forward any information obtained from the issuance of subpoenas to the Taxpayer.
This case is scheduled for hearing on March 5, 2012 in Fantasy, SC.
Respondent attempts to disguise his attempt at summoning Petitioner’s bank records by subverting the traditional process of issuing a §7609 summons and instead using a Tax Court Subpoena Duces Tecum.
According to www.dictionary.findlaw.com and other dictionary sources, summons and subpoena are synonyms both requiring a party to appear (in court) as a witness or to command the production of evidence.
Summons and subpoena are interchangeable within §7609.
To the issue of Jurisdiction: Since Respondent used a Tax Court Subpoena Duces Tecum, the Tax Court holds jurisdiction. According to Tax Court Rule 147(b) Petitioner has the right to request a Subpoena be quashed, however the time has passed for such a motion since Petitioner was unaware of the Subpoena Duces Tecum in a timely manner and was unable to submit a motion before the execution of said Subpoena Duces Tecum. Therefore Petitioner submits this Motion in Limine to have all evidence obtained by use of Subpoena Duces Tecum excluded.
Purpose of Summons
According to §7602(a) the IRS has the authority to issue a summons for the purposes of “…ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability…” Therefore the Secretary would need this information before a Substitute for Return was prepared or tax examination changes were made and before Plaintiff petitioned the Tax Court.
The purpose of a summons, according to U.S.C. §7609(b)(2)(A) is to gain information regarding taxpayers in an investigation to collect taxes.
“To enforce an IRS summons, the IRS must establish a prima facie case to demonstrate its “good faith” that the summons; (1) is issued for a legitimate purpose; (2) seeks information relevant for that purpose; (3) seeks information that is not already within IRS possession; and (4) satisfies all administrative steps required by the United States Code.”
See United States v. Powell, 379 U.S., 48, 57-58, 85 S.Ct. 248, 254-255 (1964); Fortney v. United States, 59 F.3d 117, 119 (9th Cir. 1995).
Therefore it is Plaintiff’s position that the Internal Revenue Service cannot make any showing greater than an "idle hope" of finding something, as required by the decision in United States v. Richards, 631 F. 2d. 341, 345 (4th Cir.,1980) and that the summons has been issued in "bad faith" contrary to Powell, supra,
It is well settled precedent that a summons must state the “liability” (actual or ostensible) for which it is issued in compliance with the requirements of 26 U.S.C. §§ 7602(a), 7609(a)(3) , I.R.M. §§ 4022.62(1) and 4022.63, and 26 C.F.R. § 1.6001-1. The summons issued by the Service in this case fails to state any liability, actual or ostensible for which purpose the summons may have been issued. It is clear on the face of the summonses that Defendant has not cited any authority to issue and enforce the summons in question.
Internal Revenue Code §7602(a)(1) authorizes the IRS "[t]o examine any books, papers, records, or other data which may be relevant or material" to "... "determining the liability of any person for any internal revenue tax." However, in order to force compliance with the summons the IRS must clearly show a "realistic expectation" that the information sought would be "relevant or material" to the legitimate purposes of the summons, and is not merely a "fishing expedition" conducted in the "idle hope" that they will find something. United States v. Bisceglia, 420U.S. 141 (1975); United States v. Richards, 631 F. 2d 341, 345 (4th Cir., 1980); United States v. Harrington, 388 F. 2d 520, 524 (2d Cir., 1968).
The burden is upon the United States to show that the information sought is "relevant to proper purpose" United States v. Euge, 444 U.S. 707, 712 (1980); United States v. Huckaby, 776 F. 2d 564, 567 (5th Cir., 1985). It is readily apparent from the face of the summonses that Defendant claimed no "legitimate purpose" in issuing the summons. Therefore, the IRS has no "legitimate purpose," for the issuance of the summons. Plaintiff is unable to find published in the federal register any notice that opening a bank account and creating signature cards or depositing of monies in one's bank account amounts to a violation of any internal revenue law. Further, the IRS has failed and refused to identify any tax law which Plaintiff is being investigated under, which indicates that these summonses are clearly a "fishing expedition" devoid of any "realistic expectation" and does not rise to any level greater than "idle hope." United States v. Richards, 631 F. 2d at 345.
Absent legal authority for issuance and legitimate purpose for enforcement of the summons, nothing in Plaintiff's bank records could possibly give rise to a "realistic expectation" of those records being relevant to any legitimate investigation. Thus, Plaintiff contends that the summons is issued in "bad faith" with no purpose other than to harass and intimidate. It is unclear at this time what "bad faith" purpose the Service is pursuing in issuance of these Summonses. Thus an evidentiary hearing will in all likelihood be required to determine the true purpose of this Summons [Powell, supra 379U.S. at 58; United States v.McCarthy, 514 F. 2d. 368 (3rd Cir., 1975].
Notice
The Defendant, Department of the Treasury only served the Bank with the Summons, but did not forward them to the Taxpayer under §7609. The purpose of the section is to give Taxpayer notice of rights to protect personal documents from unlawful seizure or inspection.
U.S.C. §7602(a)(2) states that the Secretary may request records through a summons. §7602(c)(1) states that “An officer or employee of the Internal Revenue Service may not contact any person other than the taxpayer with respect to the determination or collection of the tax liability of such taxpayer without providing reasonable notice in advance to the taxpayer that contacts with persons other than the taxpayer may be made..” §7602(c)(3)(B) states that this subsection shall not apply “if the Secretary determines for good cause shown that such notice would jeopardize collection of any tax or such notice may involve reprisal against any person; or (C) with respect to any pending criminal investigation.”
The Plaintiff has not been given any indication that he is under criminal investigation; to his knowledge, no Justice Department referral has been made. Therefore, the Plaintiff was entitled to know about the Summons to the bank prior to the bank being contacted. Also, to the Plaintiff’s knowledge, no “good cause shown that such notice would jeopardize collection of any tax…” has been submitted to justify this subversion of the Plaintiff’s rights as a taxpayer.
If a Justice Department referral has been made, no summons can be issued under §7602 nor any action be taken against the Plaintiff under §7604.
This case is scheduled for trial on March 5, 2012 and Plaintiff is just now learning of the IRS summons. This information should have been sought and retrieved via legal means prior to the issuing of Notices of Deficiencies and prior to the commencing of the Tax Court case. Under Tax Court Rule 70, all discovery is to be closed by 45 days prior to the hearing date. The discovery window was closed on January 21. The evidence sought by the Internal Revenue Service cannot be used in this case to assess the Plaintiff any further taxes. Because the Plaintiff has received no copies of any information delivered under these Summons within the 45 day window, this information cannot be used in this Tax Court case for these tax years.
There was no indication in any of the documentation produced in the above mentioned Tax Court case that the Plaintiff was under any criminal investigation or that the Commissioner would be seeking bank records to supplement the information he has already used.
The action by the Department of the Treasury has violated a number of provisions in the statute. The Department of the Treasury did not properly notify the Plaintiff of the intention to contact the Bank for his records or his business’ records pertaining to tax years 2004, 2005, 2006, and 2007.
U.S.C. §7609 states that the taxpayer must be notified “within 3 days of the day on which such service is made” of the summons to the Defendant bank. The Defendant Department of the Treasury did not notify the Plaintiff of any request made to the Bank. The PNC Bank notified the Plaintiff of the request 60 days after the summons and informed the Plaintiff that it intends to hand over the records. PNC Bank, was issued the summons on November 9, 2011. The Plaintiff was only made aware of the summons issued to his Bank about 60 days after the summons was issued. It has been over 75 days since the summons was issued on the bank, and Petitioner has not yet received proper notice of this summons nor any information obtained from the summons from the Respondent.
The Plaintiff has not received sufficient notice of summons, prior to or after the issuance of the Summons in accordance with §7609(a)(2) “Such notice shall be sufficient if, on or before such third day, such notice is served in the manner provided in section 7603 (relating to service of summons) upon the person entitled to notice…”
The Court in C&J Trust v. United States, 2002 WL 1987417 (E.D.Cal.), stated “Section 7609’s primary purpose is ‘to require that the target taxpayer be given notice, so that he would be able to assert appropriate defenses.’” (citing United States v. Pittsburgh Trade Exchange, Inc., 644 F.2d 302, 305 (3rd Cir. 1981); United States v. First Bank, 737 F.2d 269, 271 (2nd Cir. 1984). “’The plain meaning’” of section 7609(a) requires that notice be given only to the person(s) ‘identified’ in the summons.’” (citing again First Bank, 737 F.2d at 273. Id. at. 2.
In addition to all above stated, the Return of Service section at the bottom of the Subpoena Duces Tecum was not properly attested to according to Tax Court Rule 147(c) and Petitioner asserts that lack of proper service should also invalidate said Subpoena.
The Plaintiff would like to convey, in simple terms, the violations he believes took place which led to the infringement on his due process rights as a taxpayer and which brought rise to this Motion in Limine
The Service has no legitimate purpose in obtaining Plaintiff’s bank records
The Plaintiff was not given sufficient notice of any communication planned or which took place within three days of the request;
In fact, the Plaintiff never received notice, sufficient or otherwise, by the Commissioner, of the summons issued to any of the Defendant bank;
Discovery in the Tax Court case has now been closed so that any records released would not be admissible in this case;
WHEREFORE, the Plaintiff prays this Court hold that the Respondent has not shown proper purpose for the summons and use of Plaintiff’s banking records; Plaintiff did not receive proper or sufficient notice of the summons issued on the Bank; and to quash the subpoena issued on him personally as well on his business records, granting this Motion in Limine and issue a prohibition on incoming records; and that the records already released be destroyed as they were obtained in violation of §7609, according to the Fruit of Poisonous Tree Doctrine which is premised on suppressing evidence that “is in some sense the product of illegal governmental activity.” Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (emphasis in original).
Respectfully submitted,
Date: January 26, 2012
__________________________
Robert Freeman, pro se
Both in individual capacity and
As owner of Plaintiff’s Business
CERTIFICATE OF SERVICE: I certify that on this date, I delivered via regular mail in a postage paid envelope, a copy of the foregoing Motion in Limine to the following persons at the addresses below:
Department of the Treasury
Internal Revenue Service
Office of Division Counsel
ATTN: James Bamburg
400 West Bay Street, Suite 240
Jacksonville, FL 32202
January 26, 2012
___________________________________
Robert Freeman, pro se
123 Main St.
Freedom, SC 12345