ROBERT FREEMAN )
Petitioner ) DOCKET # 002xxx-10
v. )
)
COMMISSIONER OF INTERNAL REVENUE ) Opposition to Respondent’s
Respondent ) Pretrial Memorandum
____________________________________)
Petitioner hereby files his Opposition to Pretrial Memorandum dated February 21, 2012.
Said pretrial memorandum is partially incorrect and should be disregarded by this Court.
Petitioner object to all Respondents witnesses labeled as “Representatives” because no specific person has been named. The Honorable Judge made it clear in her pre trial call that she wanted the names of individuals listed on the pre trial memo.
This case is only about tax years 2004-2007. Whatever evidence Respondent attempts to admit in relation to any other tax years is not relevant to this case.
Petitioner respectfully objects to his bank records being admitted into evidence because a case is pending in District Court to quash the summons. Until the District Court rules one way or the other on that Motion to Quash, these records cannot be admitted into evidence.
Respondent likes to state that Petitioner was not cooperative, yet it is Respondent who did not cooperate with Discovery requests issued by Petitioner. Petitioner requested two times by way of informal letter, that Respondent submit answers to Admissions and produce documents. This fact is substantiated by a letter to Area Counsel dated August 18, 2010. Petitioner may have inadvertently, prematurely filed a Request for Admissions with the Court, but Respondent still failed to timely answer, regardless of whether Petitioner followed this court’s protocol or not. Petitioner even gave Respondent additional time to respond by not objecting to Respondent’s Motion to Vacate Deemed Admissions.
Respondent states he subpoenaed Petitioner’s bank records after the filing of this Court’s Standing Pretrial Order. There is nothing that Petitioner can find stating that one must wait to start Discovery until the issuance of the Standing Pretrial Order. In fact, Tax Court Rule 70(a) (2) states: “Time for Discovery: Discovery shall not be commenced, without leave of Court, before the expiration of 30 days after joiner of issue (see rule 38).”
Tax Court Rule 38 states, “A case shall be deemed at issue upon the filing of the answer, unless a reply is required under Rule 37, in which event it shall be deemed at issue upon the filing of a reply or the entry of an order disposing of a motion under rule 37(c) or the expiration of the period specified in Rule 37(c) in case the Commissioner fails to move.”
According to Petitioner’s understanding, this case was “deemed at issue” 30 days after his reply to Respondent’s Answer which was lodged with this court on April 22, 2010. Therefore, Discovery was able to be commenced on May 23, 2010. Petitioner commenced Discovery on or about July 10, 2010. This has left Respondent adequate time of approximately 18 months or longer to obtain Petitioner’s bank records and work with Petitioner in reaching a settlement.
Respondent accuses Petitioner of waiting until the “eleventh-hour”. Respondent needs to reexamine his own job performance before casting stones.
Petitioner is not “savvy” in Tax Court rules and procedures. Respondent is a highly paid government attorney with years of training. Petitioner is a pro se litigant who is only capable of reading the Tax Court rules and procedures from the US Tax Court website where they are nicely organized.
Petitioner would like to draw this court’s attention further to the remainder of Tax Court rule 70(a)(2) stating, “Discovery shall be completed and any motion to compel such discovery shall be filed, unless otherwise authorized by the Court, no later than, 45 days prior to the date set for call of the case from a trial calendar.” Petitioner respectfully objects to this court granting extra leniency to Respondent in producing bank records that are over 1000 pages of material at the “eleventh-hour.”
By Respondent’s own admission, Respondent has no bank records from 2004 and therefore is unable to substantiate the alleged figures. Unless Respondent has a credible witness to testify to the authenticity of a 1099 or other wage statement, Petitioner asks this court to rule in Petitioner’s favor on this tax year.
Respondent references a form 12153 that was incorrectly filed. This is of no consequence to this case. As stated many times, Petitioner is a pro se litigant and he filed the wrong form in the beginning, big deal! Petitioner has strived to learn and follow court procedures to the best of his ability The Supreme Court has ruled that pro se litigants cannot be held to the same procedural standards as a highly trained lawyer. Haines v. Kerner, 404 U.S. 519 (1972)
Respondent references Petitioner “threatening” the Appeals Officer. Petitioner did not see standing up for his rights as “threatening.” Appeals had no substantiating figures. Courts have consistently ruled that it is not Petitioner’s burden of proof to document income records. Additionally, Petitioner did not have any records in his custody. Petitioner was unaware that the banks kept records back that far. Petitioner is not a banker, how is he supposed to know the intricate workings of the Federal Reserve? The bank never returned canceled checks to the Petitioner at the end of the month. Years ago, this was a common practice, now who knows what goes on inside a bank unless one works there.
Petitioner could have sued the IRS (not the individual agent) under §7433, so his statement of an alleged lawsuit was not completely out of line.
Respondent attempts to incriminate Petitioner by Petitioner’s use of a signature stamp on the back of his checks. What does it matter how Petitioner stamped the back of his checks? The bank took them, the bank deposited them. Petitioner could have put “Exchanged for a box of cookies” and the bank would accept it as long as Petitioner’s endorsement was on it. This has absolutely no bearing on the case.
Identity theft is on the rise and many people are unaware their identity has been stolen until the IRS comes knocking on their door. Petitioner had no idea that the IRS had bank records with his name and signature, etc…when he made that generalization in his paperwork, because the IRS refused to cooperate with Petitioner by producing such records when requested. A search result on www.IRS.gov reveals over 300 articles related to identity theft. It is apparently a recognized concern by the IRS or they would not post informational articles about this topic.
Respondent accuses Petitioner of “lying dormant for months and months wherein he could have been taking steps to resolve his case, petitioner is now littering the record and obfuscating the issues in the eleventh-hour.” Let Petitioner once again point out that it is Respondent’s burden to accurately and fairly prove Petitioner’s income. Petitioner was ready to move forward with Discovery in 2010, yet is was Respondent who waited 12 months to prepare stipulations and then prematurely moved this Court to compel Petitioner to answer, when Petitioner had not even had 30 days to previously do so.
It is Respondent who has delayed cooperation in this case and is “obfuscating” the record to the extent of submitting an Amended Answer just seven days before the call of the case from the court calendar!
The ABA Model Code of Professional Responsibility EC 7-14 states: “A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlements or results.”
For the above stated reasons, Petitioner asks this court to disregard Respondent’s opinion and much of the narrative in Respondent’s Pretrial Memo.
CERTIFICATE OF SERVICE: I hereby certify that on March 5, 2012, I personally hand delivered a copy of this pleading to the Respondent at the Tax Court Session in Jacksonville, FL.
March 5, 2012
________________________ Robert Freeman, Pro se 123 Main Street Freedom, SC 12345