Motion For Rehearing
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
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Case #: WWXXPP
John Patriot
Petitioner
}
vs.
_______________________
Motion to Set Aside Order
The United States; the U.S. Internal
Revenue
Granting Motion to Dismiss
Service; Pioneer Title Inc., Principal
Residential
Service; Pioneer Title Inc., Principal Residential
Mortgage, Inc., Stewart Title of Pinellas, Inc.,
Fairview Title Company, Household Financial
Services, Inc., Amsouth Bank, Cimarron Mortgage
Company, Bank Atlantic, and Wendover Financial
Services Corp.
Respondent
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Petitioner requests that this court set aside its Order to Dismiss. The court
has ruled that it lacks jurisdiction, because service was not perfected and that
the proper defendant was not named in plaintiff’s original petition. The
Plaintiff strongly disagrees with the courts ruling for the following
reasons.
Court lacks Jurisdiction and Failure of Proper Service
The court stated in it’s Order to Dismiss that it lacks jurisdiction to hear
this case. As detailed in Plaintiff’s Memorandum of Law, filed with clerk of
the court on August 27, 2003, Plaintiff attempted to assist the court in
correcting its improper ruling to dismiss Plaintiff’s petition to quash.
Plaintiff has “instituted a proceeding to quash” per 26 CFR section
301.7609-(b) (2). The code section clearly states, “Not withstanding any other
law or Rule of Law, any person shall have the right to begin a proceeding to
quash such summons not later than 20 days. Such person shall mail by registered
or certified mail a copy of the petition to the person summoned and to such
office as the Secretary may direct in the notice referred to in subsection
(a)(1)”.
By mailing a copy of the original petition within 20 days to the summoned
parties and the Agent who issued
the summonses, Plaintiff has satisfied the requirements of code section 7609.
FRCivP Rule (4)(m) is superceded by 26 CFR section 7609(b)(2)(A), (“Not
withstanding any law or Rule of law”) and 7609(B).
None of the cases cited by the U.S. Attorney on this issue are controlling in
this case. Section 7609 gives
Plaintiff a “substantive right” to quash a summons and that right cannot be
deprived by Rule 4 of the FRCivP.
Thus the Plaintiff has fully met the jurisdictional requirements of code section
7609.
1
“The forthwith service requirement is a term of the government's consent to be
sued. The requirement defines the scope of the government's liability to be sued
and defines a litigant's right to sue the government. As such, the requirement
cannot be brushed off or superseded as merely procedural”. Libby v. United
States, 840 F.2d 818 (11th Cir. 03/21/1988
“In interpreting a statute, a court should always turn first to one cardinal
canon before all others. We have stated time and again that courts must presume
that a legislature says in a statute what it means and means in a statute what
it says there. When the words of a statute are unambiguous, then this first
canon is also the last: judicial inquiry is complete.” Conn. National Bank
v. Germain, 503 U.S. 249 (1992).
The Plaintiff has served all parties required by code section 7609 and also to
parties that are not required by code section 7609. The U.S. Attorney claimed,
and the court agreed, that the United States was the only proper party that
could have been served. Petitions original complaint named “The U.S. Internal
Revenue Service, etc.” as parties to this action. The United States is named
in the petition. Failure of the Plaintiff to include a comma between “U.S.”
and the “Internal Revenue Service” is clearly within the courts right of
liberal interpretation of a formal petition filed by a pro se litigant. Formal
pro se pleadings are supposed to be held to less stringent standards than those
formal pleading’s drafted by lawyers, (Haines v Kerner, 404 U.S., 519,
92 S. Ct.). In fact, this court has already exercised it’s duty to hold a pro
se to less stringent standards, by
correcting Plaintiff’s 1st Motion to Dismiss, and interpreting that motion to
mean “Motion to Set Aside”. This court clearly understood which party the
Plaintiff named as Defendant and should have instructed Plaintiff to amend his
original petition, if so warranted.
Rule 82 FRCivP states “These rules shall not be construed to extend or limit
the jurisdiction of the United States district courts or the venue of actions
therein”. As the Plaintiff has clearly shown to this court, all parties
required by code section 7609 have been served and thus this court has
jurisdiction over these proceeding. There is only (1) Internal Revenue Service.
Code section 7609 names the United States as the Defendant. What other party
could possibly be named as the defendant? Furthermore, the IRS, the U.S.
Attorney, the U.S. Department of Justice, and the U.S Attorney General have all
been served. This court should clearly recognize that Plaintiff named the United
States as the Defendant.
“These rules do not extend or limit the jurisdiction of federal district
courts”. Flesch v. Eastern Pennsylvania Psychiatric Institute, E.D.Pa.1977,
434 F.Supp. 963. See, also, McDonald v. Dykes, D.C.Pa.1947, 6 F.R.D. 569,
affirmed 163 F.2d 828. And Mississippi Pub. Corp. v. Murphree, U.S.Miss.1946,
66
S.Ct. 242, 326 U.S. 438, 90 L.Ed. 185.
2
Defendant entitled to Summary Judgment The court also included in it’s Order
Granting Motion
to Dismiss, that the IRS would have been entitled to summary judgment regardless
of it’s final ruling. Plaintiff
respectfully disagrees with the court’s opinion.
In this case, through the declaration of Revenue Agent Aikens, Respondent has
not met his initial burden on summary judgment. In turn, however, by countering
with his own declaration, Petitioner has met his summary judgment burden.
Petitioner's declaration and oral argument hearing on August 26, 2003, raises a
factual dispute over whether, as required by I.R.C. section 7602(c), Respondent
provided Petitioner with a notice of third-party contact before he served the
subject third-party summonses. In his declaration, Petitioner states that
Respondent has failed to send, or otherwise give, Petitioner this statutorily
mandated notice.
In reply to Petitioner's declaration that Respondent failed to provide him with
the required notice of third party contact, Respondent strongly alleged that
I.R.C. section 7602 (c) was irrelevant.
Instead, Council focused the Court's attention solely on the fact that the Mr.
Aikens complied with the I.R.C. section 7609(a)(1) third-party summons notice
procedures and that the requirements of code section 7602 did not apply in this
case.
Indeed, Respondent firmly argued to the Court that they had timely provided
Petitioner with notice of the summonses served within 3 days of the day on which
such service [was] made, but no[t] later than the 23rd day before the day fixed
in the summons as the day upon which such records are to be examined as
prescribed by I.R.C. section 7609(a)(1). Petitioner agrees that that required
has been met.
However, respondent seems to be confused; for she has confounded the agents
post-summons obligation
under I.R.C. section 7609(a)(1) with the agents pre-summons duty under
I.R.C. section 7602(c). United States v. Jillson, 84 AFTR2d Par.
99-5551, No. 99-14223-CIV-MIDDLEBROOKS (S.D. Fla. 1999). Further, in reply to
Petitioner's argument, Respondent has failed even to state, let alone show, that
he provided
Petitioner with the statutorily required third-party contact notice. It is clear
that the Respondent believes that Revenue Agent Aikens has satisfied all of the
procedural requirements with respect to the issuance of 3rd party summonses. By
the agents own declaration and the Respondents own defense of that declaration,
it is now perfectly clear that all “administrative steps by the IRS” have
not been satisfied.In addition, Respondent argued that code section 7602 did not
apply to the issuance of summonses and thus created a disputed matter of fact.
3
The summonses at issue in this case were each issued after January 19, 1999.
Thus, the third-party contact
notice procedures of I.R.C. section 7602(c) applies to this case. Petitioner is
the non-moving party and all inferences should be resolved in his favor.
Accordingly, on summary judgment, "the evidence of the non-movant is to be
believed." Id. at 255, 106 S. Ct.
at 2513. The district court should "resolve all reasonable doubts about the
facts in favor of the non-movant," Browning v. Peyton, 918 F.2d 1516, 1520
(11th Cir. 1990), and draw "all justifiable inferences . . . in his
favor," Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir. 1987).
"If more than one inference could be construed from the facts by a
reasonable fact finder, and that inference introduces a genuine issue of
material fact," summary judgment is not justified. Bannum, 901 F.2d at 996
Plaintiff prays that this court set aside it’s Motion to Dismiss and grant a
hearing to argue the factual issues of dispute as raised in this Motion to
Set Aside Courts Order to Dismiss.
Respectfully
_________________________
September 3, 2003,
John Patriot – pro se
Patriot Drive
Patriot FL, 34698
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