United States Tax Court
Washington, DC 20217
Rhonda Patriot ))Petitioner )) Docket No. 217xxxx v. ) Motion for Opposition to Summary JudgmentCommissioner of Internal Revenue )) Respondent )
Petitioner, Rhonda Patriot, hereby files her opposition to the government's motion for summary judgment dated November 1, 2005, based upon the following reasons:
1. During this audit and collection process, Patriot has been denied independent judicial review as guaranteed
to her under the due process clause in the U.S. Constitution 5th and 14th amendments.
2. Pursuant to IRC sections 6320 and 6330, Petitioner requested Collection Due Process Hearings for tax periods 1998, 1999, 2000 and 2001 within 30-day time period allowed by statute.
3. Congress has set forth three pre-conditions for Collection Due Process Hearing (herein referred to as CDHP).
A. Petitioner must make request
B. Petitioner must make request in a timely manner, 30 days.
C. Petitioner must state the purpose of the hearing which includes collection alternatives, procedure irregularities, spousal relief and tax liability in some cases.
4. Petitioner complied with all of these. The IRS has preconditions for taxpayer not to raise political, Constitutional and religious concerns. Petitioner complied with this.
5. IRS has other irregular and interesting preconditions such as filling out forms and submitting a payment schedule. These requirements are impossible since Petitioner does not know what the IRS wants until he meets with him. Petitioner is not required to do these and did not.
6. The IRS illegally and wrongfully withheld a hearing and has violated his statutory rights and administrative due process rights to appear at a hearing.
7(a). The definition of a hearing found in Merriam-Webster's Dictionary of Law C1996.
1: a proceeding of relative formality at which evidence and argument may be presented on the matter at issue to be decided by a person or body having decision-making authority.(Compare trial)
Note: The purpose of a hearing is to provide the opportunity for each side of a dispute, and especially a person who may be deprived of his or her rights, to present his/her position. A hearing, along with notice, is a fundamental part of procedural due process. Hearings are also held, as for example by a legislature or an administrative agency, for the purpose of gathering information and hearing the testimony of witnesses.
2: a trial in equity practice Merriam-Webster's Dictionary of Law 1996.
7(b). The definition of a hearing found in Blacks Law Dictionary 6th Edition:
A proceeding of relative formality (though generally less formal than a trial), generally public, with a definite issues of fact or law to be tried, in which witnesses are heard and evidence presented. It is a proceeding where evidence is taken to determine issue all fact and rendered a decision on basis of that evidence. People v. Ivenditti, 276 C.A.2d 178, 80 Cal.Rptr. 761,762. The parties proceeded against or otherwise involved have right to be heard, in much the same manner as a trial and such proceedings may terminate in final order. See e.g. 5 U.S.C.A. $ 556.
8. Petitioner disagrees with all of the notice of determination except as admitted above.
9. In the case of Schultz II, the US Court of Appeals for the 2nd Circuit issued a definitive ruling:
Independent judicial review is required for all IRS collection enforcement activities. Now the IRS is like landlords, banks, and loan companies. The Debtor is entitled to an independent judge to scrutinize the enforcement activities of all collection agencies. Harsh actions are no longer allowed without the acquiescence or intervention from a judge. A judge is defined as holding a lifetime appointment with no diminishment in salary. Schulz v. IRS,2nd circuit, June 2005, Case Cite:413 F.3d 297(2d)NY), 95 A.F.T.R.2d 2005-3007, 2005 WL 152090
Petitioner hereby requests independent review of the administrative action. Please send the appropriate and necessary forms for Petitioner to comply with the mandate of the 2nd Circuit. See Schultz II, Supra.
10. Petitioner requested a hearing (meaning a face to face hearing) within the time period and therefore is entitled to an in-person hearing. Under IRC 6330, Petitioners are entitled to a CDPH at a location convenient to them. In this case, the CDPH was held in ( ? Columbia, S.C.) without petitioner being present.
Petitioner made many offers of collections alternative during the Appeal process. The IRS did not comply with Petitioner's request for a financial statement form to complete and the IRS form 4340 which had the information Petitioner needed to complete the OIC form. Had the Settlement Officer complied with Petitioner's simple request, they would have completed the financial statement and OIC forms prior to the hearing.
Taxpayer was not given the opportunity to raise any relevant issue relating to the unpaid tax or the proposed levy at a hearing in accordance with IRC 6330.
11. Petitioner's rights were violated and the (1) motion for summary judgment and (2) motion for penalty under IRC 6623 should be overturned and a new, proper CDPH should be scheduled. The settlement officer was not a person entitled to hold a CDPH.
The Umbrella of the Due Process Clause of the US Constitution, 5th and 14th amendments
12. Plaintiff seeks judicial review of the IRS tax assessment under the due process clause of the United States Constitution. No government agency can take any action against any citizen absent judicial intervention. Government agents are not allowed into people's homes or people's pocketbooks without review by the independent judiciary.
13. The seizure actions of virtually all other federal agencies are subject to judicial review. A hearing must be held prior to the agency seizing someone's property. On Fuentes v. Shevin,407 U.S. 67, 80, 96-97 (1972) the U.S. Supreme Court recognized "the right to a prior opportunity to be heard before chattels are taken from their possessor."
The appellee does not suggest that these [contractual] provisions waived the appellants' right to a full post-seizure hearing to determine whether those events had, in fact, occurred and to consider any other available defenses. By the same token, the language of the purported waiver provisions did not waive the appellants' constitutional right to a pre-seizure hearing of some kind...We hold that the Florida and Pennsylvania prejudgement replevin provisions work a deprivation of property without due process of law insofar as they deny the right to a prior opportunity to be heard before chattels are taken from their possessor...Since the essential reason for the requirement of a prior hearing is to prevent unfair and mistaken deprivations of property, however, it is axiomatic that the hearing must provide a real test. "[D]ue process is afforded only by the kinds of 'notice' and 'hearing' that are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property..."Sniadach v. Family Finance Corp., at 343 ( Harlan, J., concurring). See Bell v. Burson,at 540;Goldberg v. Kelly,at 267.
14. In Sniadach v. Family Fin. Corp. of Bay View,395 U.S. 337, 342 (1969), the U.S. Supreme Court addressed "the issue of whether a post-seizure hearing is meaningful in terms of due process and deciding that a pre-deprivation notice and opportunity to be heard is necessary absent an important governmental or public interest to the contrary" under specific circumstances.
15. Recent investigations of the problem have disclosed the grave injustices made possible by prejudgment garnishment whereby the sole opportunity to be heard comes after the taking[as noted by Congressman Sullivan, Chairman of the House Subcommittee on Consumer Affairs who held extensive hearings on this and related problems]...Thus, the U.S. Supreme Court ruled that where the taking of one's property is so obvious, [egregious, and sinister in effect], it needs no extended argument to conclude that absent notice and a prior hearing (cf. Coe v. Armour Fertilizer Works,237 U.S. 413, 423) this prejudgment garnishment procedure violates the fundamental principles of due process.
16. Until Schulz II, supra the IRS has has been able to conduct seizures without judicial review. The recent ruling changed how the IRS must comply with judicial review, including how it conducts CDPH. Now the IRS also is finally constrained by the "fundamental principles of due process" and its seizure attempts are subject to review by the independent judiciary in order to protect the rights of citizens.
17. In conclusion, Petitioner request independent judicial review of IRS's enforcement actions. The courts have a long string of cases requiring a judicial intervention under the due process clause before state action against a citizen. Therefore this court should schedule a hearing to review or scrutinize the intended IRS police state activities.
Wherefore petitioner request relief requested hereinabove.
November 17, 2005
Rhonda S Patriot
c/o Post Office Box 1234
Freedomville, US 12345